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BOOK    344. B53   c.  1 

BIRKHIMER    #    MILITARY    GOVERNMENT 

AND   MARTIAL    LAW 


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MILITARY  GOVERNMENT 


MARTIAL  LAW 


William  E.  Birkhimer,  LL  R; 

FIRST    LIEUTENANT   AND   ADJUTANT   THIRD   UNITED   STATES   ARTILLERY. 


WASHINGTON,  1),  C. 

JAMES  J.  CHAPMAN, 
1892. 


Entered,  according  to  Act  of  Congress,  in  the  year  1892,  by 

William  E.  Birkhimer, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


845.2. 


THE     MEMORY      OF     MY      FRIEND, 
LIEUTENANT    COLONEL 

ROBERT  NICHOLSON  SCOTT, 

THIRD    UNITED    STATES    ARTILLERY, 

WHOSE     GENIAL     NATURE     CAUSED      HIM      EVERYWHERE      TO     BE      BELOVED  J      WHOSE 

PROFESSIONAL     LITERARY      LABORS,      IN      WHICH      HE     SACRIFICED 

HIS     LIFE,     FORM     AN     ENDURING      MONUMENT     TO     HIS     INDUSTRY, 

ABILITY',    AND     DEVOTION     TO     DUTY  |     AND 

WHOSE    CONFIDENCE      IT     WAS      MY      PRIVILEGE     TO     ENJOY, 

THIS     WORK      IS 

AFFECTIONATELY    INSCRIBED. 


PREFACE 


When,  in  1886,  the  writer  was  detailed  by  the  War  Department  as  Acting 
Judge  Advocate  Department  of  the  Columbia,  he  found,  upon  reporting 
for  duty,  that  the  Commanding  General  had  but  recently,  under  the 
President's  orders,  been  assisting  the  Governor  of  Washington  Territory 
to  put  down  an  uprising  against  the  Chinese.  The  more  effectually  to  do 
this,  the  civil  authorities  being  powerless,  the  Governor  had  deemed  it 
necessary  to  proclaim  martial  law  in  the  most  populous  city  of  the  Terri- 
tory. The  writer  found  also  that  both  these  officials  were  being  proceeded 
against  in  the  courts  for  alleged  violations  of  the  rights  of  certain  citizens 
on  this  occasion.  He  began  to  prepare  himself  as  best  he  could  to  defend 
his  chief,  the  commanding  general,  from  civil  liability.  The  suits  were 
soon  dropped,  it  being  evident  to  even  the  plaintiffs  that  they  would 
prove  futile.  Meanwhile,  however,  the  interest  of  the  writer  having  been 
attracted,  he  continued  to  pursue  his  researches  after  the  cause  which 
originally  inspired  them  had  ceased  to  be  of  practical  importance- 

It  was  soon  seen  that,  under  the  term  martial  law,  two  distinct  branches  of 
military  jurisdiction — the  foreign  and  the  domestic — were,  by  most  author- 
ities, hopelessly  confounded.  This,  perhaps,  was  not  unnatural,  for  martial 
law  may  with  no  great  impropriety  be  used  to  signify  the  sway  of  arms 
under  all  circumstances.  Yet,  because  of  the  diverse  rules  of  responsi- 
bility attaching  to  those  who  enforce  military  jurisdiction  under  varying 
conditions,  it  is  necessary,  not  only  to  avoid  confusion  of  thought,  but 
to  protect  officers  in  their  just  rights,  to  attach  to  the  term  a  more  technical 
meaning. 

When  operating  on  foreign  soil  the  legal  obligations  of  the  dominant 
military  are  tested  by  one  rule;  when  within  their  own  territory  by  a 
wholly  different  rule,  having  regard  to  the  civil  and  property  rights  of  the 
inhabitants.  What  may  be  permissible  to  the  commander  in  the  exercise 
of  his  authority  in  the  former,  with  no  responsibility  other  than  to  his 
military  superiors,  might,  in  the  latter,  subject  him  to  grave  civil  respon- 
sibilities. If  it  be  attempted  to  throw  around  the  officer  in  the  latter 
case  that  immunity  from  civil  liability  which  attaches  to  his  conduct 
in  the  former,  the  people — his  fellow-citizens — might  with  well-founded 
apprehensions  view  the   temporary  establishment  over    them,   for    even 


VI  PREFACE. 

the  tnost  laudable  purpose,  of  the  rule  of  military  force.  If,  how- 
ever, it  be  understoo  1  that  this  cau  not  be  done  ;  if  the  principle  be 
established  that  the  commander  who,  under  any  circumstances  whatso- 
ever, assumes  to  enforce  superior  military  power  over  the  people  and 
territory  of  his  own  coautry  does  so  under  ultimate  legal  responsibility 
for  his  acts,  military  rule  is  deprived  of  its  terrors,  and  the  law-abiding 
citizen  sees  in  it  nothing  except  the  firm  application  for  his  benefit  of 
the  powerful  military  hand  when  civil  institutions  have  ceased  either 
wholly  or  at  least  effectively  to  perform  their  appropriate  functions.  Nor 
as  to  this  does  it  signify  whether  temporary  military  supremacy  results 
from  efforts  to  repel  invasion  or  to  suppress  insurrection.  The  rule  of 
liability  is  the  same  in  both  cases. 

It  is  evident,  therefore,  that  there  must  be  one  term  to  express  the  fact 
of  supreme  military  domination  over  the  community  abroad,  and  another 
for  the  same  thing  at  home. 

This  was  clearly  pointed  out  by  Attorney-General  Cushing,  in  1857,  in 
an  opinion  conspicuous  for  the  legal  acumen  which  characterizes  the 
professional  writings  of  that  distinguished  jurist.  But  at  that  time  the 
true  nature  and  limits  of  military  jurisdiction  had  not  in  this  country 
received  sufficiently  close  judicial  examination  to  admit  of  demonstration 
upon  recognized  principles  of  municipal  and  international  law.  This  it 
remained  for  the  Chief  Justice  of  the  United  States  to  do  in  the  dissent- 
ing views  of  the  minority  of  the  justices  in  Ex  parte  Milligan,  after  the 
experience  of  the  Civil  War  had  directed  attention  to,  and  thrown  a  flood 
of  light  upon,  the  subject.  The  truth  of  this  observation  is  wholly  inde- 
pendent of  the  conflicting  opinions,  regarding  the  correct  territorial 
limits  of  martial  law,  expressed  by  the  justices  in  that  celebrated  case. 
The  analysis  of  the  chief  justice  is  masterly,  and  leaves  nothing  to  those 
who  follow  him  except  to  fill  in  the  details  of  the  plan,  the  ground-work 
of  which  he  so  ably  laid.  This  has  been  attempted  in  the  following 
pages.  How  imperfect  soever  the  execution,  it  may  result  in  fuller  in- 
vestigation into,  and  exposition  of,  the  principles  involved,  and  thus 
prove  of  benefit  to  the  military  profession  —to  serve  which  is  the  writer's 
only  ambition. 

Washington  Barracks,  D.  C, 

November  1,  1802. 


CONTENTS. 


INTRODUCTION, 
i.  Two  branches  military  jurisdiction  considered.  2.  Military  govern- 
ment distinguished  from  martial  law.  3.  Efforts  to  soften  laws  of  war. 
4.  American  instructions  for  armies  in  the  field.  5.  Martial  law  a  purely 
domestic  fact.  6.  May  be  instituted  by  both  executive  and  legislative, 
including  congressional  authority. 


PART   L— MILITARY  GOVERNMENT. 

CHAPTER  I. 

POWER  TO"  DECLARE  WAR. 
i.  Definition.     2.  War  powers  express  and  implied.    3.  Daw  of  nations 
recognized  in  Constitution  United  States. 


CHAPTER  II. 

RIGHT   TO    ESTABLISH   MILITARY   GOVERNMENT. 

1.  Over  conquered  foreign  territory.      2.  Within  districts  occupied  by 
rebels  treated  as  belligerents. 


CHAPTER  III. 

TEMPORARY    ALLEGIANCE   OF   INHABITANTS. 

1.  Mutuality  of  protection   and  allegiance  in  theory  of  government. 
2.  Principle  in  modified  form  applicable    in  territory  militarily  occupied. 


CONTENTS. 

CHAPTER  IV. 
TERRITORIAL   EXTENT. 


I.  Exclusive  adverse  possession  the  test  of  military  occupation.  2.  Time 
when  becomes  operative.  3.  Sufficient  if  people  recognize  authority  of 
nvader. 


CHAPTER  V. 

TERRITORY  MILITARILY  OCCUPIED— ENEMY  TERRITORY. 

I.  Military  Government  not  add  permanently  to  territory  of  dominant 
State.  2.  State  policy  may  vary  this  rule.  3.  Districts  occupied  by  rebels 
treated  as  belligerents  in  law  foreign.  4.  Course  pursued  by  United  States 
in  civil  war.     5.  British  rule. 


CHAPTER   VI. 

EFFECT  OF  OCCUPATION   ON    LOCAL  ADMINISTRATION. 

I.  Exports  and  imports  under  military  government.  2.  Municipal  laws 
continued  as  matter  of  convenience.  3.  Political  laws  temporarily  super- 
seded. 4.  The  conqueror  dictates  the  rules  of  military  government. 
5.  This  principle  subject  to  modification. 


CHAPTER  VII. 


AGENTS   FOR   CARRYING   INTO   EXECUTION. 

i.  To  be  determined  by  dominant  State.  2.  Either  State  policy  or  laws 
of  war  govern  here.  3.  Case  of  conquered  rebel  territory.  4.  Dual 
military  and  civil  control.     5.  Course  of  United  States  Government. 


CHAPTER  VIII. 


ALL   INHABITANTS   ENEMIES — LEVIES   EN   MASSE. 

i.  Subjects  of  one  belligerent,  enemies  of  those  opposing.  2.  Not  all 
enemies  treated  alike.  3.  Rule  dealing  with  rebels.  4.  Duty  of  uon- 
combatauts.  5.  Question  of  uniform.  6.  Predatory  bands.  7.  Levies  en 
masse.     8.  Prerequisites  that  they  may  be  treated  as  belligerents. 


CONTENTS. 


CHATTER  IX. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED    COUNTRY. 

i.  Laws  dominant  State  not  extend  over  occupied  territory.  2.  Con- 
queror bound  by  laws  of  war  only.  3.  Classes  affected,  (1)  the  conquered, 
(2)  members  of  dominant  State,  (3)  neutrals.  4.  L,aws  governing  each 
class.     5.  Courts  and  judicial  system  under  military  government. 


CHAPTER   X. 

RIGHTS    REGARDING   PRIVATE   PROPERTY. 

i.  All  enemy  property  subject  to  seizure.  2.  Private  property  appro- 
priated (1)  confiscation,  (2)  boot}-,  (3)  contributions.  3.  Rule  same  foreign 
and  civil  war.  4.  Immovable  property,  fruits,  rents,  profits  thereof.  5. 
Contracts  under  military  government  cease  with  it.  6.  Exceptions.  7. 
Effect  of  conqueror's  administrative  acts  after  he  ceases  rule.  8.  Disposi- 
tion spoils  of  war.  9.  Distinction  right  to  enemy  property  on  sea  and 
land.  10.  When  private  enemy  property  liable  seizure.  II.  Right  destroy 
enemy  property.  12.  Classes  enemy  property  seizable.  13.  Debts  due 
from  State  to  alien  enemy.  14.  Rights  of  commander  regarding  property 
belonging  both  to  enemy  subjects  and  State.  15.  Mere  occupation  not 
transfer  title  to  property.  16.  Principle  post  liminium.  17.  Corporeal 
and  incorporeal  property.  18.  Private  debts  between  parties.  19.  Degal 
actions  under  military  government  against  absent  enemies.  20.  Title 
immovable  enemy  property  not  transferred  ipso  facto  by  occupation.  21. 
Possession  documents  evidence  of  debts.  22.  Effect  of  acts  de  facto  rev- 
olutionary government. 


CHAPTER   XI. 

RIGHTS   REGARDING   PUBLIC   PROPERTY. 

1 .  Rule  seize  on  all  property  of  State.  2.  Title  to  public  enemy  property 
passes  by  seizure.  3.  Movable  property,  corporeal  and  incorporeal.  4. 
Military  government  disappears,  rights  former  State  revert.  5.  Works  of 
art,  appropriation  of.  6.  Destruction  of  property.  7.  Immovable  public 
enemy  property.  8.  Alienation  of.  9.  Revenues  from.  10.  Deposed 
State  no  rights  in  conquered  country.  11.  Conquered  inhabitants  not 
obey  mandates  deposed  State.  12.  Destruction  public  property.  13.  Civil 
war,  policy  may  modify  laws  of  war. 


CONTENTS. 


CHAPTER  XII. 

TRADE   WITH   OCCUPIED   TERRITORY. 

I.  Regulated  by  dominant  power.  2.  War  interrupts  commercial  inter- 
course between  opposing  belligerents.  3.  Rule  applies  to  allies.  4. 
Relaxation  rule.  5.  Commanders  enforce  rule  non-intercourse.  6.  Sys- 
tems of  customs  duties  and  war  tariff.  7.  Regulation  trade,  occupied 
territory,  an  act  supreme  power  in  State.  8.  Military  commanders  not 
authorize  trade  with  enemy.  9.  License  to  be  legal  must  be  pursuant  to 
statute  law  authorizing.  10.  Non-intercourse  results  from  war,  however 
brought  about.  11.  Principles  by  which  rule  non-intercourse  regulated. 
12.  Exceptions  rule  uon -intercourse. 


CHAPTER  XIII. 

INSURRECTION    AGAINST    MILITARY    GOVERNMENT. 

i.  Abstract  right  of  insurrection  perfect.  2.  The  question  one  of  expe- 
diency. 3.  Illustrations.  4.  Conquered  must  act  in  good  faith  toward 
military  government.     5.  Character  of  repressive  measures. 


CHAPTER  XIV. 

RESPONSIBILITY   OF   COMMANDERS. — MILITARY   GOVERNMENT. 

I.  Powers  of  commanders  arise  out  of  and  limited  by  laws  of  war.  2. 
Characteristics  of  military  government.  3.  All  military  officers  subject 
orders  of  President.  4.  State  may  repudiate  acts  of  its  officers.  5.  Re- 
sponsibility of  commanders  to  individuals.  6.  Invaders  not  amenable 
before  courts  occupied  districts.  7.  Outlawry  and  retaliation.  8.  Actions, 
ex  contractu  and  ex  delicto.  9.  Case  Mitchell  v.  Harmony  reviewed.  10. 
Principle  of  responsibility  there  enunciated.  n.  Legislation  softening 
rule  of  responsibility.  12.  Court  of  Claims.  13.  Principles  upon  which 
discretionary  power  exercised. 


CHAPTER  XV. 

MILITARY    GOVERNMENT. — TRIBUNALS. 

i.  Military  commissions.  2.  Illustrations  exercise  powers  of.  3.  Origin 
in  customs  of  war.  4.  Legislative  recognition.  5.  Responsibility  of 
appointing  officers.     6.  Same  of  members.     7.  Limits  of  jurisdiction. 


CONTENTS.  XI 

CHAPTER  XVI. 

WHEN   MILITARY  GOVERNMENT  CEASES. 

i.  This  a  question  as  to  how  conqueror  relinquishes  control,  if  at  all. 
2.  Termination  not  necessarily  coincident  with  treaty  of  peace.  3.  War 
code  ceases  with  war.  4.  Military  rule  necessary  until  stable  government 
re-established. 


PART  II.— MARTIAL   LAW. 


CHAPTER   I. 

MARTIAL   DISTINGUISHED   FROM   MILITARY   LAW. 

i.  Definition  martial  law.  2.  Differs  from  military  law.  3.  Term 
derived  from  English  jurisprudence.  4.  Change  in  signification  of  term. 
5.  Resort  to  martial  law  early  history  England.  6.  Petition  of  Right.  7. 
Limits  martial-law  power  United  States.  8.  Views  Confederate  authorities. 
9.  Question  of  territorial  limitation.  10.  A  belligerent  right  as  a  means 
repel  invasion.  11.  When  resorted  to  in  suppression  of  revolt  and  insur- 
rection. 12.  Though  an  arbitrary,  not  an  irresponsible  power.  13.  Great 
problem,  reconcile  necessities  of  government  with  personal  rights. 


CHAPTER  II. 

MARTIAN   LAW   UNDER    ENGLISH    JURISPRUDENCE- 

i.  Theories  martial  law  depend  on  experiences  of  States.  2.  Varying 
experience  England  and  United  States.  3.  Crown  by  prerogative  enforce 
martial  law.  4.  Ordinary  courts  need  not  be  closed  to  justify.  5.  British 
Colonial  experience.  6.  Views  Sir  James  Fitz  James  Stephen.  7.  Mar- 
tial-law courts    neither  bound  by  nor  receive  support  from  mutiny  act. 

8.  English    authorities — Simmons,     McArthur,     Griffiths,     The    Manual. 

9.  What  constitutes  levying  war.  10.  Incidents  attending  riots  and  re- 
bellions in  England,  n.  Pratt's  rules  administration  martial  law.  12. 
Comments  thereon. 


Xll  CONTENTS. 

CHAPTER  HI. 

THEORY,  MARTIAL   UW   IN   UNITED   STATES. 

i.  Experiences  martial  law  in  United  States,  (i)  repelling  invasions,  (2) 
suppressing  insurrections.  2.  Views  of  attorney-general  and  opposing 
counsel  Milligau  case.  3.  Supreme  Court  United  States  decides  in  favor 
legality  of  martial  law  in   certain   cases.      4.  Rule  amenability  officers. 

5.  Military  not  antagonistic  to  civil  power  time  peace.  6.  When  martial 
law  invoked  to  repel  invasion.     7.  When  to  suppress  insurrection. 

CHAPTER  IV. 

MARTIAL  SUPPIvEMF;NTS   COMMON   LAW. 

i.  Advantages  common  law.  2.  Its  weakness.  3.  Lacks  power  com- 
mand respect,  periods  grave  disturbances.  4.  This  caused  usurpations 
early  English  sovereigns.     5.   Provisions  common  law  suppressing  riots. 

6.  Martial  law  supplies  lacking  energy  and  power  common  law.  7.  Mar- 
tial-law feature  Petition  of  Right  not  affect  colonies.  8.  Action  Royal 
governors  American  colonies. 


CHAPTER  V. 

NECESSITY  JUSTIFYING   MARTIAL   LAW. 

I.  Arises  only  when  municipal  authorities  inadequate— expediency  not 
justification.  2.  Character  of  necessity  varies  with  circumstances.  3. 
May  be  enforced  even  when  courts  performing  their  functions.  4.  Phys- 
ical obstacles  not  sole  impediments  due  administration  laws.  5.  Invasion, 
present  or  threatened,  may  justify.  6.  Conduct  commanding  general  at 
New  Orleans,  1S14.  •  7.  Difficulty  uniting  law-abiding  elements  preserve 
order.  8.  Chief  Justice  Taney  in  Merryman's  case.  9.  Martial-law  action 
of  President  during  civil  war.  10.  When  courts  considered  open  in  exer- 
cise of  jurisdiction,  quere. 


CHAPTER  VI. 

FEDERAL  AUTHORITY  TO   INSTITUTE   MARTIAL  LAW. 

1.  United  States  embraces  two  distinct  sovereignties.  2.  Constitutional 
war  powers.  3.  President  authorized  use  military  maintain  laws.  4. 
Constitutional  and  statutory  supplemented  by  implied  powers.  5.  Pres- 
ident  uses   military   independently   State    authorities.     6.  State   of  war 


CONTENTS.  Xlll 

legalizes  martial  law  as  war  measure.  7.  Under  martial  law  the  military 
supreme.  8.  Instances  martial  law  instituted  by  Federal  authority.  9. 
Principles  for  enforcement  of,  enunciated.  10.  Suspension  privilege  writ 
habeas  corpus.     11.  Exercise  military  authority  District  of  Columbia. 


CHAPTER  VII. 

CONGRESSIONAL,   MARTIAL  LAW. 

i.  Question  of  authority  Congress  institute  martial  law.  2.  The  Recon- 
struction acts.  3.  Assumption  by  Congress  of  Executive  functions.  4. 
General  of  the  army  interposed  between  President  and  his  subordinates. 
5.  Reconstruction  acts  a  rigid  system  of  martial  law.  6.  Decisions  of  Su- 
preme Court  United  States  regarding  authority  exercised  thereunder. 


CHAPTER  VIII. 

MARTIAL   LAW   IN   STATES   AND   TERRITORIES. 

1.  Constitutional  guarantees  of  United  States  to  States.  2.  States  to 
have  governments  republican  in  form.  3.  United  States  redeems  its 
guarantee  in  own  way.  4.  President  judges  how  responds  to  State  calls 
for  aid.  5  He  decides  whether  or  not  martial  law  necessary.  6.  Take 
care  not  impair  republican  form  State  government.  7.  Governor  within 
State  similar  authority  to  President  enforce  martial  law.  S.  Recent 
instance  in  Idaho  9.  Confederate  governors  during  civil  war.  10.  Mar- 
tial law,  Washington  territory,  n.  Instances  different  parts  United  States 
Summer  1892.  12.  Failure  of  the  posse  comitatus  as  efficient  arm  of 
government.     13.  Military  power  the  substitute. 


CHAPTER  IX. 

ADMINISTRATION   OF   MARTIAL   LAW. 

1.  Efficient  system  administration  a  necessity.  2.  Duties  subordinates 
should  be  defined.  3.  Offences  peculiar  to  martial  law  status.  4.  Necessary 
force  only  justifiable.  5.  Who  maybe  arrested  in  martial -law  district. 
6.  Mr. Webster's  views  martial-law  authority.  7.  Commander  can  not 
delegate  authority  or  transfer  responsibility.  8.  Arrests  not  confined 
to  cases  open  rebellion.  9.  Change  in  judicial  decisions  in  United  States 
as  to  use  martial-law  authority. 


CONTENTS. 


CHAPTER  X. 

martial-law  Tribunals. 

i.  Tribunals  suited  martial-law  offences.  2.  Such  tribunals  based  on 
custom  of  armies.  3.  All  laws  of  United  States  not  written.  4.  Im- 
plied powers  necessary  to  render  express  effectual  part  of  latter.  5.  Who 
authority  appoint  martial-law  tribunals.  6.  Jurisdiction  of  same.  7.  Re- 
sponsibility of  members.  8.  Territorial  jurisdiction.  9.  Rule  as  to  time 
offence  committed.  10.  Rules  procedure  martial-law  tribunals.  11.  Rules 
of  evidence  applicable. 


CHAPTER   XL 

RESPONSIBIUY   OF  COMMANDERS — MARTIAL,  LAW. 

i.  Rule  of  law  as  to  exercise  discretionary  authority.  2.  Necessity  sup- 
porting officer  in  same.  3.  Immunity,  same  secured  either  by  statute  or 
custom.  4.  Instances  officers  held  responsible.  5.  Articles  of  War  ap- 
plicable to  civilians.  6.  Necessity  charitable  view  exercise  military 
authority  face  enemy.  7.  Officers  transcending  jurisdiction  may  be  liable. 
8.  Statutes  for  protection  Federal  officers. 


CHAPTER   XII. 

RESPONSIBILITY  OF  SUBORDINATES. 

I.  Obedience  to  lawful  orders  enjoined.  2.  Necessity  for.  3.  Case 
order  unlawful.  4.  Tenderness  courts  toward  subordinates.  5.  Rule 
responsibility  order  illegal.  6.  Change  judicial  opinion  concerning. 
7.  Rule  responsibility  subordinates  not  fully  settled.  8.  Responsibility 
members  military  tribunals.  9.  Courts  proceeding  within  jurisdiction, 
question  of  malice. 


CHAPTER  XIII. 

BILLS   OF   INDEMNITY. 

I.  Customary  in  England,  not  always  in  United  States.  2.  What  they 
cover.  3.  Jamaica  case.  4.  After  civil  war  in  United  States.  5.  Deck 
sions  Supreme  Court  regarding. 


CONTENTS. 


APPENDICES. 
i. 

General  Scott's  martial-law  order,  published  in  city  of  Mexico. 

II. 
Instructions  for  United   States   armies   in   the   field,    and   supplement 
(G.  O.  ioo,  A.  G.  O.,  1863,  and  G.  O.  No.  3,  A.  G.  O.,  1891.) 

III. 

The  Brussels  project   of  an   International  Declaration  concerning  the 
laws  and  customs  of  war. 

IV. 
Proposed  code  of  the  laws  of  war  adopted  at  session,  Institut  de  Droit 


International,  Oxford,  September,  1880. 

V. 
State  of  Siege  in  France. 


MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 


INTRODUCTION. 


Military  jurisdiction  is  treated  in  the  following  pages  in  its 
two  branches  of  Military  Government  and  Martial  L,aw.  The 
former  is  exercised  over  enemy  territory  ;  the  latter  over  loyal 
territory  of  the  State  enforcing  it. 

The  enemy  territory  over  which  military  government  is  es- 
tablished may  be  either  without  the  territorial  boundaries  of 
the  dominant  State,  or  comprise  districts  occupied  by  rebels 
treated  as  belligerents  within  those  boundaries. 

It  has,  however,  been  determined  by  numerous  decisions  of 
the  Supreme  Federal  Tribunal  that,  for  all  war  purposes,  dis- 
tricts thus  occupied  by  rebels  are  foreign.  From  a  belligerent 
point  of  view,  therefore,  the  theatre  of  military  goverment  is 
necessarily  foreign  territory. 

On  the  other  hand,  martial  law  as  here  considered  is  purely 
a  domestic  fact,  being  instituted  only  within  districts  which,  in 
contemplation  of  law,  are  friendly. 

The  distinction  is  important.  Military  government  is  thus 
placed  within  the  domain  of  international  law,  while  martial 
law  is  within  the  cognizance  of  municipal  law.  The  difference 
between  these  two  branches  of  military  jurisdiction  becomes 
most  strikingly  manifest  through  the  dissimilar  rules  of  respon- 
sibility under  which  officers  exercise  their  respective  powers  in 
the  two  cases.  With  rare  exceptions  the  military  governor  of 
a  district  subdued  by  his  arms  is  amenable,  according  to  the 
laws  and  customs  of  war  only,  for  measures  he  may  take  affect- 
ing those  found  there,  whatever  their  nationality  ;  whereas  he 
who  enforces  martial  law,  as  here  understood,  must  be  pre- 
pared to  answer,  should  the  legality  of  his  acts  be  questioned, 
not  only  to  his  military  superiors,  but  also  before  the  civil  tri- 
bunals when  they  have  resumed  their  jurisdiction. 

The  theory  of  temporary  allegiance  has  been  adopted  as  most 
aptly  descriptive  of  the  relations  borne  by  those  in  the  occupied 


2  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

district  toward  the  military  government  established  over  them. 
It  has  the  sanction  of  repeated  decisions  of  the  Supreme  Court 
of  the  United  States  with  reference  both  to  our  own  people 
temporarily  subjected  to  foreign  rule,  and  enemy  subjects  when 
brought  under  our  military  control.  And  although  this  theory 
is  rejected  by  some  respectable  writers  the  weight  of  authority 
and  all  practice  favors  it.  Certainly  in  the  light  of  the  judicial 
decisions  referred  to  it  is  entitled  to  great  respect. 

Not  only  does  this  theory  give  a  juster  conception  of  the  re- 
lations existing  between  the  ruler  and  people  ruled  under  these 
circumstances  than  any  other,  but  it  is  based  upon  considerations 
which  are  peculiarly  advantageous  to  the  latter.  It  signifies  to 
them  protection  to  person  and  property  in  so  far  as  this  course 
is  compatible  with  a  proper  prosecution  of  the  war  by  the  domi- 
nant power.  To  appreciate  its  beneficence  we  have  only  to  re- 
call what  a  great  relaxation  this  is  from  the  strict  rules  of  war. 

Formerly  adverse  military  occupation  vested  in  the  conqueror 
a  right  to  all  property  found  there,  and  transferred  to  him  the 
sovereignty  of  the  subjugated  territory.  He  appropriated  the 
former  without  stint,  nor  did  he  hesitate  to  press  the  inhabitants 
into  the  ranks  of  his  army.  That  was  the  rule  from  earliest  times 
down  through  the  Napoleonic  period.  It  is  true  that  the  dis- 
semination of  learning  and  the  advances  of  civilization  amelio- 
rated the  condition  of  the  conquered,  yet  neither  Frederick  the 
Second  nor  Napoleon  hesitated  to  lay  violent  hands  upon  enemy 
property  regardless  of  military  necessities,  or  to  recruit  their 
armies  from  the  people  of  conquered  provinces  who  were  forced 
into  the  service.     Wellington  was  more  humane. 

Can  it  be  denied  that,  under  the  theory  of  temporary  allegi- 
ance, the  position  of  those  who  are  subjected  to  military 
government  is  not  more  eligible  than  that  here  portrayed  ? 

There  is  no  mystery  regarding  the  foundation  upon  which 
the  duty  of  temporary  allegiance  rests.  Upon  this  point  the 
language  of  the  Supreme  Court  is  very  emphatic.  When  the 
regular  government  is  driven  out  and  no  longer  can  secure  the 
people  in  those  rights  which  government  principally  is  instituted 
to  maintain,  their  allegiance  is  for  the  time  in  abeyance,  and, 
in  a  modified  form,  is  transferred  to  that  government — even 
though  it  be  founded  on  overpowering  adverse  military 
force — which  can  and  does,  either  wholly  or  partially,  secure 


INTRODUCTION.  3 

them  in  those  rights.1  Nor  does  it  signify  that  the  inhabitants 
do  not  by  visible  signs  join  with  their  military  ruler  in  arrang- 
ing the  details  of  his  government.  Their  covenant  is  implied  ; 
but  it  is  none  the  less  binding  because  it  consists  in  silent 
acquiescence  in  the  new  order  of  things.  What  the  conqueror 
does  from  generosity  is  in  derogation  of  his  strict  rights.  And 
whatever  may  be  his  motives,  the  result  is  apt  to  be  far  more 
beneficial  to  the  conquered  than  to  himself.  He  is  dictating, 
they  accepting,  terms.  Happy  their  lot  that  he  is  thus  willing  to 
concede  to  them  many  immunities  from  the  hard  fortunes  of  war. 
From  any  other  than  a  humanitarian  view  it  is  matter  of  in- 
difference to  him  whether  or  not  they  are  protected  in  their 
rights  of  life  and  property  ;  to  them  it  is  a  matter  of  vital 
importance.  He  is  there  to  enforce  his  will  and  is  able  to  do  it  ; 
they  must  accept  what  he  offers.  By  remaining  with  their 
property  in  territory  which  he  alone  governs,  they  impliedly, 
under  the  laws  of  war,  accede  to  his  terms  ;  and  while  they 
live  under  his  rule  and  receive  the  benefits  of  that  law  and 
order  which  he  institutes  and  maintains,  they  owe  to  him  that 
transient  duty  of  obedience  which  is  called  temporary  alle- 
giance. 

Nothing  could  be  more  disastrous  to  the  interests  of  inhab- 
itants of  occupied  territory  than  for  them  to  be  made  to  believe 
that  the  invader  is  there  by  sufferance,  and  has  no  rights  which 
they  are  bound  to  respect.  They  are  not  in  a  position  to  as- 
sume such  lofty  ground.  To  do  it  is  simply  to  court  disaster. 
Of  this  they  may  rest  assured  :  the  military  government,  if 
need  be,  will  enforce  obedience.  If  the  people — their  regular 
government  evicted — proceed  toward  the  invader  as  if  he  were 
a  mere  intruder,  whom  they  may  treat  with  contumely,  they 
will  probably  have  cause  to  regret  their  presumption.  It  may 
cost  millions  of  dollars,  the  devastation  of  fair  provinces,  the 
destruction  of  flourishing  towns,  and  many  hundred  lives  to 
bring  them  to  a  realizing  sense  of  their  error,  but  the  experi- 
ence will  be  theirs,  and  one  which  they  will  not  wish  repeated. 
What  evidence  the  incidents  of  the  Franco-German  War  of 
1870  -'71  bear  to  this  fact !  Yet,  that  was  the  ' '  contest  of  force  ' ' 
conducted  between  the  most  refined,  enlightened  nations.     All 

1.  4  Craiich,  211  ;  4  Wheatou,  453  ;  9  Howard,  603. 


4  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

this  is  emphasized  by  Russian  experiences  on  the  soil  of  Tur- 
key, immediately  after  a  conference  assembled  at  the  solicita- 
tion of  the  Czar  with  a  view  to  softening  the  inevitable  hard- 
ships of  war,  and  which,  as  hereafter  narrated,  recommended 
an  international  code  for  that  purpose  distinguished  for  its  pre- 
cepts of  mercy  and  good  will. 

Equally  unfortunate  in  its  effects,  if  it  be  acted  upon,  is  the 
proposition  that  the  vanquished  State  retains,  with  reference  to 
inhabitants  of  occupied  territory,  the  rights  of  sovereignty  in 
all  its  plentitude,  and  that  they  must  obey  its  mandates.  This 
is  purely  chimerical.  They  are  under  no  obligations  to  recog- 
nize the  authority  of  a  State  which  can  only  command  their 
services  without  the  power  to  protect  them  if  they  obey.  To 
do  this  is  but  to  invite  severest  measures  of  repression  on  the 
part  of  the  military  governmental  authorities. 

It  is  not  proposed  in  this  treatise  to  sanction  doctrines  so 
fraught  with  melancholy  results  to  those  who  are  so  unfortu- 
nately situated  as  to  be  for  {he  time  subjected  to  the  enemy's 
arms. 

During  the  last  half  century  there  has  been  a  great  revolu- 
tion in  weapons  of  war.  This  has  not  been  confined  to  the  arms 
of  the  soldier,  but  extends  to  the  armament  of  works,  the  use 
of  mines,  torpedoes,  and  other  death-dealing  inventions.  While 
attention  has  been  directed  to  this  branch  of  the  military  art, 
another  and  agreeable  spectacle  has  been  presented  in  efforts  of 
humane  and  learned  men,  soldiers  and  others,  to  reduce  the 
laws  of  war  to  a  concise  code  that  they  may  be  better  and  more 
generally  understood  ;  at  the  same  time  inculcating  and  nur- 
turing a  sentiment  favorable  to  reducing  sufferings  engendered 
by  war  as  much  as  possible.  Those  who  have  been  conspicu- 
ous in  these  labors  have  not  belonged  to  a  class  who  indulge 
Utopian  dreams  of  general  and  perpetual  peace.  They  recog- 
nize the  fact  that,  until  human  nature  changes,  wars  will  be. 
Their  efforts  have  been  directed  to  the  creation  of  an  universal 
public  opinion  favorable  to  minimizing  the  evils  which  attend 
the  prosecution  of  hostilities. 

The  main  instrumentality  through  which  it  has  been  at- 
tempted thus  to  advance  the  cause  of  humanity  has  been  cour 
ventions  of  an  international  character  in  whose  deliberations 
delegates  from  a  large  number  of  States  have  taken  part.     The 


Introduction.  5 

declaration  of  Paris  of  1S56  may  be  taken  to  have  given  the 
first  impulse  toward  such  concerted  action.  Then  came  the 
Geneva  Conventions  of  1864  and  1868,  respectively,  in  the 
proceedings  of  which  twenty-three  States  signified  their  ac- 
cpiiesence,  and  which  considered  particularly  the  amelioration 
of  the  condition  of  the  sick  and  wounded  and  protecting  those 
who  administer  to  their  welfare.  Next  in  order  was  the  St. 
Petersburg  Convention  of  1868,  participated  in  by  seventeen 
States,  and  which  resulted  in  an  agreement  not  to  use  as  between 
the  contracting  powers  an  explosive  bullet  below  four  hundred 
grammes  weight  or  loaded  with  fulminate  or  inflammable  mate- 
rial. Then  followed  the  Brussels  Conference  of  1874,  which 
indirectly  resulted  from  the  efforts  of  certain  influential  persons 
to  have  some  general  understanding  entered  into  which  would 
secure  prisoners  of  war  better  treatment.  But  the  conference, 
brought  about  finally  through  the  efforts  of  the  Czar,  went  far 
beyond  this  and  promulgated  an  "international  declaration" 
setting  forth  the  principles  upon  which  wars  between  nations 
should  be  conducted. 

This  code  followed  the  plan  marked  out  in  "  Instructions  for 
Armies  in  the  Field,"  prepared  by  Dr.  Francis  L,ieber  and  pub- 
lished in  April,  1863,  by  the  War  Department  for  the  guidance 
of  the  land  forces  of  the  United  States,  being  the  first,  as  it  has 
proved  the  most  successful,  effort  to  embrace  in  small  compass 
the  general  principles  underlying  the  present  laws  and  customs 
of  war,  honoring  alike  the  political  philosopher  who  digested 
and  so  admirably  arranged,  and  the  military  service  which 
amidst  the  passions  of  civil  war  adopted,  them.  In  a  particular 
manner  they  embody  the  fundamental  rules  by  which  com- 
manders of  armies,  departments,  and  districts  are  to  be  guided 
in  their  treatment  of  inhabitants  subjected  to  military  govern- 
ment.1 

The  ' '  Instructions  ' '  were  obligatory  upon  the  Army  of  the 
United  States  only.  In  this  respect  their  sphere  was  more  cir- 
cumscribed than  that  of  the  Brussels  code,  which  was  interna- 
tional in  aspiration.  In  another  respect  they  were  more  com- 
prehensive, for  they  were  applicable  not  only  to  wars  between 
independent  States  but  to  civil  wars  as  well,  while  the  Brussels 

1.  Appendix  II. 


6  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

code  referred  to  the  former  only.  The  circumstance  of  this 
dissimilarity  is  accounted  for  by  the  diverse  experience  of  the 
nations  promulgating  the  respective  codes. 

In  one  particular  the  "  Instructions  "  have,  it  is  believed,  an 
advantage  over  all  succeeding  codes,  which,  without  exception, 
have  been  based  upon  them.  The  former  are  wholly  practical, 
while  it  is  doubtful  if  more  recent  codes  in  all  respects  are. 
This  also  is  easily  accounted  for.  The  ' '  Instructions ' '  were 
adopted  in  the  midst  of  a  great  war,  the  result  of  which  none 
could  foresee.  Before  being  adopted  they  were  examined  by  a 
board  of  eminent  military  officers  who  not  only  understood 
what  the  laws  of  war  were  theoretically,  but  from  experience  in 
the  field  knew  their  applicability  and  how  they  were  to  be 
carried  into  execution.  Moreover,  they  were  adopted  under 
grave  official  responsibility,  the  officers  who  sanctioned  having 
to  use  them  during  the  continuance  of  the  war  as  their  rule  of 
conduct  in  dealing  with  the  enemy.  Examination  will  evince 
that  they  bear  the  deep  impress  of  this  official  responsibility. 
The  justness  of  this  statement  is  not  impaired  by  the  fact  that 
the  ' '  Instructions  ' '  were  adopted  precisely  as  submitted  to  the 
board  ;  this  circumstance  only  furnishes  additional  evidence  of 
the  thoroughness  with  which  they  had  been  prepared.  While 
they  attempt  to  put  into  official  shape  the  humanity  of  the  land, 
they  do  not  deprive  a  belligerent  of  all  fair  and  reasonable 
means  of  successfully  carrying  on  war.  His  hands  are  not  tied 
by  theories  regarding  the  rights  of  the  other  party  belligerent, 
or  of  the  inhabitants  of  territory  militarily  occupied.  Yet 
throughout  it  is  inculcated  that  the  law  of  war  imposes  many 
restrictions  on  the  modes  formerly  adopted  to  injure  the  enemy 
based  on  principles  of  justice,  faith,  and  honor.  It  may  be 
confidently  affirmed  that  the  "  Instructions  "  form  a  convenient 
and  useful  code  of  the  essential  laws  of  war  on  land  ;  and,  im- 
bued as  they  are  with  the  milder  precepts  of  modern  warfare, 
they  may  be  expected  successfully  to  withstand  the  mutations 
of  time  until  at  least  the  present  moral  sense  of  man  has  taken 
a  long  step  in  advance.  The  prediction  is  here  ventured  that 
they  will  continue  to  be  the  rule  of  hostile  nations  when  crimi- 
nations and  recriminations  are  being  indulged  because  of  infrac- 
tions of  these  later  codes.  To  attempt  by  such  agreements  un- 
reasonably  to  restrain  the  actions  of  a  belligerent  regarding 


INTRODUCTION.  7 

coercive  measures  to  be  used  against  the  enemy  is  only  to  in- 
vite their  utter  disregard  when  nations  join  in  deadly  strife. 

On  the  other  hand,  the  Brussels  code,  and  also  that  agreed 
upon  in  1880  by  the  Institut  de  droit  International,  which  has 
been  published  to  the  world  as  the  best  modern  thought  on  this 
subject,  has  the  disadvantage  of  being  adopted  in  times  of 
peace,  when  the  minds  of  men  in  dealing  with  military  affairs 
turn  rather  to  the  ideal  than  the  practical.  It  is  not  meant  by 
this  to  disparage  the  learning,  ability,  and  zeal  of  those  who 
digested  these  codes.  In  this  they  stood  pre-eminent  before 
the  world,  and  some  were  soldiers  of  great  experience.  The 
proceedings  of  these  learned  bodies  show,  however,  that  the 
propositions  of  each  State  were  in  greater  or  less  degree  generally 
rejected  by  the  others  as  inadmissible,  and  the  final  result,  par- 
ticularly in  the  Brussels  conference,  was  a  compromise  between 
conflicting  interests.  They  may  be  expected  to  share  the  fate 
of  compromises  generally  which  are  without  a  binding  sanc- 
tion— be  broken  at  the  convenience  of  the  parties.  The  great 
powers  at  once  divided  upon  the  Brussels  code.  And  here  it 
may  be  observed  that  these  powers  alone  are  of  real  importance 
when  an  international  code  is  to  be  adopted  ;  if  they  do  not 
make  they  unmake  them  ;  yet  in  all  conventions  and  confer- 
ences having  in  view  the  adoption  of  such  codes,  the  smaller 
States  are  conspicuous  by  the  part  they  take  in  their  delibera- 
tions and  published  conclusions. 

The  most  striking  feature  of  the  Brussels  conference  consisted 
in  the  manner  in  which  the  smaller  were  arrayed  against  the 
larger  continental  States  upon  some  of  the  most  important 
topics  brought  up  for  discussion,  such  as  the  territorial  limits 
of  military  occupation,  and  the  right  of  the  people  to  rise 
en  masse  either  to  repel  or  drive  out  an  invader. 

There  were,  besides,  many  questions  regarding  the  laws  of  war 
which  the  conference  left  untouched,  as  it  was  known  there 
could  be  no  agreement.  Great  Britain  instructed  her  delegate 
to  take  110  part  in  discussions  which  seemed  to  bear  on  principles 
of  international  law  not  already  generally  accepted,  and  to  op- 
pose all  debates  on  the  laws  of  maritime  warfare.  That  gov- 
ernment joined  hands  also  with  the  smaller  continental  States 
in  opposing  everything  which  would  facilitate  so-called  aggres- 
sive wars  or  paralyze  the  powers  of  resistance  of  an  invaded 


8  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

people.  In  truth,  the  Brussels  conference  and  the  action  of  the 
British  Government  relative  to  the  code  it  promulgated,  conclu- 
sively demonstrated  that  those  nations  who  maintain  large 
standing  armies,  and  those  who  do  not,  are  in  many  important 
particulars  deeply  interested  in  having  different  rules  recognized 
as  the  laws  of  war.  How  long  a  code  adopted  under  such  cir- 
cumstances, reluctantly  acquiesced  in  by  the  really  great  mili- 
tary powers  with  a  knowledge  that  they  may  stretch  its  provis- 
ions when  convenient,  or  of  what  efficacy  it  will  prove,  remains 
to  be  seen.  Russia  soon  had  a  self-sought  opportunity  to  put 
her  alleged  generous  views  into  practice,  but  nothing  was  clearly 
discernible  in  her  conduct  of  the  war  of  1877  '8  which  would 
have  raised  the  suspicion  that  the  Czar  had  proposed  the  Brussels 
conference  and  applauded  its  results.  Such,  when  interests  ot 
States  intervene,  is  the  difference  sometimes  observable  between 
promise  and  fulfillment. 

In  addition  to  the  Instructions  mentioned,  and  the  general 
laws  of  war,  United  States  officers  have  for  their  guidance  many 
decisions  of  the  Supreme  Court  upon  the  meaning  and  scope  of 
those  laws.  The  latter  are  regarded  in  all  civilized  countries 
as  of  great  weight.  Those  which  arose  out  of  the  incidents  of 
the  Civil  War  are  particularly  valuable  as  they  make  clear  much 
which  formerly  was  obscure  regarding  belligerent  rights  and 
the  multifarious  duties  of  officers  enforcing  military  government. 
To  United  States  officers  they  are  not  only  highly  instructive, 
hut  they  are  of  binding  efficacy  as  well.  Hence  in  this  treatise 
the}-  are  frequently  referred  to  and  given  prominence  in  kee;  ing 
with  their  importance,  intrinsic  worth,  and  authoritative  char- 
acter. It  were  not  possible,  perhaps,  in  the  decisions  of  any 
other  tribunals  to  find  the  subject  of  the  true  relation  of  all 
within  the  sphere  of  military  occupation  treated  in  so  copious  a 
manner,  from  the  elevated. standpoint  of  judicial  fairness,  as  in 
the  published  opinions  of  the  United  States  Supreme  Court. 
They  are  of  special  importance  in  an  international  view,  and  in 
an  American  work  should  receive  every  consideration. 

He  who  attentively  considers  the  past  and  present  of  the  laws 
of  war,  whether  prompted  by  curiosity,  or,  if  a  soldier,  by  a 
desire  for  professional  knowledge,  will  have  his  attention  arrested 
by  the  agreeable  fact,  before  adverted  to,  that  there  exists  among 
civilized  nations  a  widespread  and  steadily  growing  sentiment 


INTRODUCTION.  9 

in  favor  of  reducing  to  the  least  practicable  the  evils  which  war 
necessarily  entails.  No  where  else  is  its  growth  healthier  than 
in  the  military  profession.  This  sentiment  has  a  deep  founda- 
tion in  the  kindlier  feelings  of  human  nature. 

At  last  this  feeling  has  crystallized  itself  into  a  well-defined 
proposition — that  neither  enemy  property  nor  life  shall  be  sacri- 
ficed unless  thereby  the  military  interests  of  the  belligerent 
are  proportionately  subserved  ;  in  other  words,  that  parties  bel- 
ligerent shall  no  longer  permit  the  useless  entailment  of  suffer- 
ing on  the  people  who  inhabit  the  theatre  of  operations.  In 
the  abstract  there  is  nothing  new  in  this  proposition.  It  has 
long  had  a  place  in  the  maxims  of  civilized  warfare.  But  truth 
forces  the  confession  that  often  it  has  been  more  honored  in  the 
breach  than  in  the  observance.  That  which  is  new  about  it 
now  is  the  apparent  determination  on  the  part  of  the  leading 
nations  to  make  the  lifeless  theory  a  living  reality. 

It  will,  however,  be  a  great  mistake  to  imagine  that  this  be- 
nign rule  of  conduct,  which  in  so  far  as  it  becomes  actively 
operative  detracts  from  the  extreme  rights  of  a  belligerent  in 
eneni)'  country,  will  ever  be  of  value  if  practical  effect  be  given 
to  the  belief  that  the  people  of  the  occupied  territory  who  have 
this  leniency  shown  them  owe  the  invader  nothing  in  return 
therefor.  When  they  accept  this  milder  treatment  they  must 
pursue  toward  their  temporary  ruler  a  course  which,  while  not 
impairing  their  permanent  allegiance  to  the  deposed  sovereignty, 
will  not  prejudice  the  military  interests  of  those  who  establish 
and  maintain  military  government  over  them.  The}'  can  not 
in  war  serve  two  masters.  They  must  choose  between  the 
ousted  and  the  de  facto  government.  If  they  elect  the  former 
they  must  join  and  cast  their  fortunes  with  it  ;  if  the  latter, 
they  must  do  nothing  actively  to  injure  it.  If  they  do,  all  claim 
to  gentle  treatment  by  their  own  act  vanishes. 

All  military  is  in  one  sense  martial  rule,  for  in  its  essence  it 
is  the  law  of  arms.  Still,  because  of  the  unusual  relation  of 
the  military  to  the  civil  power,  when  for  the  time  being  in 
friendly  territory  the  latter  gives  way  to  the  sway  of  the  former, 
it  is  necessary  to  have  some  term  by  which  military  rule  under 
these  circumstances  shall  be  designated,  and  that  selected  is 
martial  law.  This  law  is  invoked  as  an  extreme  measure  which 
pressing  necessity  alone  can  justify. 


IO  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 

It  is  not  asserted  that  both  martial  law  and  the  municipal 
law  sub  modo  may  not  be  enforced  over  the  same  territory  at 
the  same  time  ;  for  where  martial  law  is  institued  by  legislative 
act  there  is  nothing  to  prevent  the  civil  administration  from 
being  retained,  although  the  military  is  made  predominant,  the 
limits  of  each  being  defined.  Similarly  the  executive  officer 
who  enforces  martial  law  may  bring  the  civil  power  to  his  as- 
sistance. The  effect,  however,  of  martial  law  is  either  to  super- 
sede the  municipal  law  wholly  or  the  latter  is  retained  subordi- 
nate to  the  former. 

There  are  disagreeable  associations  connected  with  the  term 
martial  law  which,  as  it  is  now  understood  and  used  in  this 
treatise,  should  not  attach  to  it.  This  arises  from  the  fact  that 
in  the  earlier  days  of  English  history  and  down  into  the  Stuart 
dynasty  resort  was  had  to  irresponsible  power  by  the  sovereign , 
sometimes  with,  oftener  without,  justification;  and  this  assumed 
prerogative,  which,  because  it  was  uncontrolled  could  not  fail 
to  be  abused,  was  called  "martial  law."  If  its  bad  features 
were  eliminated,  retaining  the  good,  none  except  evil-doers  at 
whom  its  strong  right  arm  was  directed  ever  would  have  ex- 
claimed against  it ;  and  this  result  governments,  in  later  times, 
have  sought  to  effect.  This,  not  by  denying  that  it  ever  can 
be  enforced  in  free  governments,  when  the  experience  of  all 
proves  the  contrary  to  be  true,  but  by  regulating  its  exercise. 

Happily  peace  and  good  order  is  the  rule  in  enlightened 
States.  But  history  teaches  that  this  desirable  condition  of 
society  is  liable  at  uncertain  periods  to  be  violently  disturbed. 
In  all  governments  of  laws,  as  contradistinguished  from  Asiatic 
despotisms,  it  is  the  practice  to  strengthen  the  arm  of  muni- 
cipal authority  sufficiently  to  suppress  ordinary  outbreaks  or 
commotions.  When  the  exigency  rises  to  a  higher  point  some 
other  power  must  be  called  in.  And  no  government  has  existed 
for  any  length  of  time  without  the  necessity  arising  for  using 
this  reserved  power,  which  in  every  case  is  the  military.  In 
some  States  this  force  of  last  resort  acts  or  is  supposed  to  act  in 
conjunction  with  or  in  subordination  to  the  civil  power, 
although  the  fact  generally  is  the  reverse  ;  in  others  it  is 
brought  in  requisition  by  the  executive  power — charged  with 
the  duty  of  seeing  that  the  laws  are  faithfully  executed — with- 
out the  sanction  of  positive  lawr ;  while  in  others  still — when  it 


Introduction.  ii 

is  thought  that  the  public  weal  would  best  be  subserved 
thereby — the  emergencies  justifying  martial  law  are  anticipated 
and  provision  is  made  by  statute  for  superseding  on  such 
occasions  the  civil  by  the  military  power.  The  first  two  cases 
are  often  seen  illustrated  in  the  same  State  ;  for  the  military 
acting  in  strict  subordination  to  the  civil  administration  has 
seldom  if  ever  been  found  to  be  sufficiently  energetic  to  meet 
great  crises  in  municipal  and  governmental  affairs  when  they 
took  the  form  of  grave  disorder,  insurrection,  or  rebellion  ;  and 
the  result  generally  has  been  that  the  military  commander  has 
been  obliged  to  take  the  reins  of  authority  in  his  own  hands. 
Both  English  and  American  experience  furnish  numerous  illus- 
trations of  this.  On  the  other  hand  it  is  on  the  continent  of 
Europe  that  martial  law — there  called  state  of  siege — has  been 
provided  for  by  laws  which  specify  under  what  particular  cir- 
cumstances the  military  shall  supplant  the  civil  power. 

Which  of  these  two  distinct  policies  is  the  wiser  ;  whether  to 
permit  martial  law  to  spring  forth  the  creature  of  accident,  as 
generally  has  been  the  case  in  Great  Britain  and  the  United 
States,  or  whether  it  be  the  part  of  wisdom  to  accept  the  occa- 
sional happening  of  that  imperious  necessity  which  alone  justi- 
fies resort  to  martial  law  as  an  established  fact  based  on  experi- 
ence and  provide  for  its  regulation  by  law,  is  for  the  legislature 
to  decide.  The  soldier,  however,  is  not  in  this  instance  con- 
cerned with  what  the  law  ought  to  be  but  with  what  it  is.  He  has 
in  either  case  only  to  act  when  the  emergency  arises.  He  inquires 
only  regarding  his  responsibilities  and  the  duties  devolving 
upon  him  ;  that  he  may  assume  the  one,  and  faithfully,  intelli- 
gently, and  impartially  perform  the  other. 

Every  independent  State  possesses  the  power  of  self-preserva- 
tion. The  power  is  inherent  in  the  State.  Neither  State  nor 
society  could  exist  without  it.  If  attacked  each  has  a  right  to 
defend  itself.  Nor  does  it  signify  from  what  direction  the  dan- 
ger comes  or  the  cause  thereof.  It  is  sufficient  that,  in  fact,  a 
necessity  exists  for  appealing  to  a  power  stronger  than  the 
municipal  to  meet  an  emergency  with  which  the  latter  can  not 
deal.     Then  it  is  that  martial  law  is  brought  into  play. 

If  it  be  a  case  of  internal  discord  the  State  at  such  times  must 
choose  between  anarchy  until  the  public  distemper  has  worn 
off,   or,   sacrificing  temporarily  certain  civil  rights,  invoke  the 


12  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

aid  of  the  military  to  bear  down  opposition  to  good  order 
and  re-establish  the  majesty  of  the  law.  If  the  danger  comes 
from  without,  it  is  one  which  municipal  law  never  was  intended 
to  meet ;  martial  law  in  the  threatened  district  then  may  be- 
come not  a  question  of  internal  polity,  but  of  military  necessity. 

On  principle  it  can  make  no  difference  whether  the  danger 
comes  from  without  or  within.  Martial  law  properly  may  be 
instituted  to  meet  either. 

It  may  be  asked,  is  not  municipal  authority  always  equal  to 
such  emergencies.  We  have  only  to  point  to  the  experience  of 
all  stable  governments  to  show  that  it  is  not.  If  the  civil  ad- 
ministration be  alone  depended  upon  its  powers  must  be 
stretched  beyond  what  was  contemplated  in  the  organization  of 
the  government.  In  this  there  is  far  more  danger  than  in  the 
alternative  course  of  calling  in  military  assistance,  for  if  there 
be  one  principle  above  all  others  important  to  the  well-being 
and  preservation  of  society  it  is  that  civil  powers  shall  n6t  be 
usurped  under  color  of  legal  procedure. 

It  being  admitted  that  emergencies  sometimes  confront  the 
civil  power  with  which  it  can  not  successfully  contend,  the  in- 
terests of  society  are  not  subserved  by  denying  that  martial  law 
ever  can  be  exercised,  but  by  enforcing  it  and  then  holding  to 
accountability,  according  to  the  rule  before  mentioned,  those  who 
then  may  be  entrusted  with  the  reins  of  military  authority. 

That  martial  law  can  lawfully  be  instituted  only  in  case  of 
justifying  necessity  is  conceded.  The  inroads  then  made  on  the 
rights  of  the  people  under  municipal  law  are  such  that  an  emer- 
gency alone  warrants.  There  are,  however,  two  important 
preliminary  questions  involved:  first,  what  circumstances  con- 
stitute the  necessity;  second,  who,  the  necessity  having  arisen, 
has  a  right  to  invoke  the  martial-law  power? 

The  answer  to  the  first  question  will  depend  upon  the  facts  of 
each  particular  case.  That  which  would  be  permissible  under 
some  would  not  necessarily  be  so  under  other  conditions.  All 
that  can  be  done  is  to  lay  down  some  general  rules  for  the 
guidance  of  those  upon  whom  responsibility  upon  such  occa- 
sions rests.  Efforts  at  formulating  the  precise  circumstances 
under  which  martial  law  may  be  invoked  have  proved  unsatis- 
factory for  the  reason  that  such  are  j use  the  times  when  there 
should  be  exercised  while  a  reasonable,  yet  a  wide,  discretion. 


INTRODUCTION.  13 

Even  the  French  statutes  providing  for  the  "  state  of  siege  "  are 
general  in  their  terms,  reposing  a  confidence  in  the  judgment  of 
the  commander  who  has  actually  at  any  one  spot  to  enforce  mar- 
tial law.1  In  part  II  of  this  work  an  effort  has  been  made  to 
throw  some  light  on  this  subject. 

Upon  the  second  question  authorities  are  divided.  One  class 
denies  that  Congress  may  lawfully  establish  martial  law;  the 
other  asserts  that  such  authority  may  constitutionally  be  exer- 
cised. So  far  as  the  national  authority  is  concerned  the  first 
class  maintains  that  the  enforcement  of  martial  law  and  its 
inauguration  under  any  circumstances  is  a  matter  within  the 
province  of  the  executive  branch  of  the  government ;  the 
second,  while  conceding  this,  asserts  that  it  may  be  matter  of 
legislative  cognizance  as  well.  In  this,  as  is  the  case  with 
many  other  matters  of  governmental  polity,  there  is  room  for 
and  there  exists  honest  differences  of  opinion.  In  this  work, 
notwithstanding  the  great  respect  felt  for  those  who  entertain 
the  former,  the  latter  view  is  maintained. 

It  is  conceded  by  all  that  the  common  law  is  intolerant  of 
arbitrary  power.  Yet  it  holds  every  act  justifiable  which  is 
essential  to  the  preservation  of  property  and  life.  This  is  true 
where  individuals  are  concerned.  So  much  the  more  so  is  it 
when  the  country  is  menaced  with  invasion,  or  an  attempt  is 
made  forcibly  to  overthrow  the  government  or  set  that  municipal 
authority  at  defiance  on  which  the  welfare  of  all  depends.  Force 
may  then  repel  force,  and  everything  done  which  is  necessary 
to  render  the  use  of  force  effectual.  There  is  no  new  prin- 
ciple involved  in  this.  There  is  an  analogous  use  of  force 
exercised — on  a  smaller  scale,  to  be  sure — every  day  when 
under  what  is  known  as  the  "police  power"  property  is  de- 
stroyed to  stop  the  spread  of  a  conflagration  or  to  stamp  out  the 
germs  of  contagious  disease,  leaving  the  owner  remedyless  as 
against  those  who  interposed  in  behalf  of  the  public  welfare. 
It  may  be  requisite  by  a  further  and  still  greater  exercise  of 
martial-law  authority  to  prevent  insurrection  by  the  arrest  of 
suspected  individuals  and  holding  them  in  custody  until  the 
enemy  is  repelled  or  the  rebellion  suppressed,  or  they  may  be 
brought  to  trial  before  a  military  tribunal,  if  the  case  will  not 

1.  Appendix  V. 


14  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

admit  of  delay.  This  power  can  not,  however,  be  used  in  an 
irresponsible  manner.  No  official  is  so  high  or  citizen  so  low 
that  he  is  beyond  the  power  or  protection  of  the  law.  The  exer- 
cise of  this  authority  must  not  be  taken  against  the  law,  but 
under  it.  On  the  face  of  things  acts  like  those  mentioned  are 
trespasses  which  can  only  be  justified  by  proving  that  the  cir- 
cumstances were  such  as  to  render  it  the  duty  of  the  officer  to 
disregard  the  rights  of  individuals  in  view  of  the  public  safety. 
And  he  takes  his  measures,  as  before  remarked,  under  a  sense 
of  possible  accountability  before  the  restored  civil  courts. 

Thus  far  both  those  who  deny  and  those  who  assert  the  right 
of  Congress  to  institute  martial  law  are  agreed.  The  question 
at  this  point  arises,  "  Who  has  a  right  to  authorize  the  exercise 
of  this  extraordinary  authority?"     And  here  they  separate. 

The  views  of  the  former  can  not,  perhaps,  briefly  be  better 
expressed  than  by  Mr.  Hare  in  a  learned  treatise  on  constitu- 
tional law — a  work  of  greatest  worth,  and  from  which  much  that 
has  just  been  said  regarding  the  nature  of  martial  law  has  sub- 
stantially been  taken.1  "  Military  action,"  says  this  author, 
"should  be  prompt,  meeting  the  danger  and  overcoming  it  on 
the  instant.  It  can  not,  therefore,  afford  to  wait  on  the  de- 
liberations of  a  legislative  assembly.  On  the  other  hand,  an 
act  of  Congress  authorizing  the  exercise  of  martial  law  in  a  State 
or  district  gives  the  military  commander  a  larger  charter  than 
the  end  in  view  requires  or  is  consistent  with  freedom.  Armed 
with  the  sanction  of  positive  law,  he  need  no  longer  consider 
whether  his  acts  are  justified  by  necessity.  He  may  abuse  the 
undefined  power  intrusted  to  his  hands,  and  destroy  life,  liberty, 
and  property  without  the  shadow  of  an  excuse,  on  an  idle  re- 
port or  a  rumor  that  will  not  bear  the  light.  "2  The  martial-law 
power  is  essentially  executive  in  its  nature.  It  is  not  expressly 
given  to  Congress  ;  its  exercise  by  the  latter  would  seem  to  be 
in  derogation  of  those  rights  of  life,  liberty,  and  property  secured 
to  the  citizen  by  the  4th,  5th,  and  6th  amendments  to  the  Con- 
stitution, and  therefore  beyond  the  range  of  implied  congres- 
sional powers.3 

1.  Pp.  954-55,  V.  2.         2.  Ibid.,  p.  968.         3.  Hare,  Constitutional  Law, 
V.  2,  pp.931,  963,  964.     Ponieroy,  Ibid.,  section  714. 


INTRODUCTION.  I 5 

Iii  remarking  upon  these  objections  to  the  exercise  of  martial- 
law  powers  by  Congress  the  last  can  best  be  considered  first.  In 
making  it  the  commentator  appears  to  have  overlooked  the 
decision  of  the  Supreme  Court  of  the  United  States,  n  Wallace, 
268.  It  was  there  held  that  the  amendments  in  question  inter- 
posed no  obstacle  to  the  exercise  by  Congress  of  the  war  powers 
of  the  government.  Section  6  of  the  act  of  July  17,  1862,  ren- 
dered confiscable  the  property  of  any  person  who,  owning  prop- 
erty in  any  loyal  district,  should  give  aid  and  comfort  to  the 
rebellion.  The  person  might  be  living  on  his  property.  The 
amendments  relied  on  by  Mr.  Hare  afforded  him  no  protection ; 
such  was  the  decision  of  the  court;  the  act  was  declared  to  be 
constitutional. 

It  is  difficult  to  perceive  how  Congress  can  have  such  author- 
ity and  yet  not  have  constitutional  power  to  institute  martial 
law.  The  latter  could  not  place  the  property  of  citizens  more  at 
the  mercy  of  the  government  than  the  act  of  July  17,  1862,  did 
in  the  cases  specified.  The  act  of  March  3,  1S63,1  placed  the 
liberty  of  the  subject  at  the  will  of  the  President.  This  also 
has  been  treated  as  constitutional  by  the  Supreme  Court. 2  If 
the  martial-law  power  of  Congress  needed  vindication  it  was 
given  in  these  acts,  in  the  acts  amendatory  to  the  latter,3  and 
in  the  decisions  of  the  Supreme  Court  sustaining  authority  exer- 
cised under  all  the  acts.4 

Had  Congress  formally  proclaimed  martial  law  nothing  would 
thereby  have  been  added  to  powers  conferred  upon  the  Execu- 
tive Department  through  these  several  laws.5 

But  it  is  objected  that  under  color  of  a  martial-law  act  of  Con- 
gress the  officer  might  abuse  his  power  without  liability  of 
being  held  responsible.6  The  Supreme  Court  has  decided  differ- 
ently. In  Iyiither  v.  Borden  this  question  was  directly  before 
it,  and  the  court  explicitly  rejected  the  doctrine  that  an  officer 
could'  wanton  with  authority  while  exercising  martial-law 
powers,7  and  laid  down  the  true  limits  within  which  he  must 
act.  So  as  to  the  law  expounded  by  the  English  courts.  There 
an  officer  was  held  liable  who,  in  enforcing  martial  law,  had 

1.  Section  4.  2.  Hare,  vol.  2,  p.  970.  3.  May  11,  1866  ;  March  2, 

1867.  4.  11  Wallace,  26S  ;  Ibid,  331  ;  18  Wallace,  510  ;  95  U.  S  ,  438  ; 
106  Ibid,  315  ;  no  U.  S.,  633.  5.  Hare,  vol.  2,  p.  970,  et  seq.  6.  Hare, 
Ibid,  p.  968.         7.  7  Howard,  p.  46. 


l6  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

heedlessly  and  without  due  investigation  punished  a  civilian, 
this  although  a  bill  of  indemnity  had  been  passed  covering  all 
acts  taken  pursuant  to  martial-law  authority.1  The  bill  of  in- 
demnity was  not  permitted  to  cover  with  the  cloak  of  oblivion 
acts  of  needless  cruelty.  The  opposite  doctrine  has  never  in 
any  degree  received  judicial  sanction,  and  it  is  believed  it  never 
will.  It  is  contrary  to  reason  and  every  principle  of  justice 
that,  under  color  of  law,  officers  shall  be  permitted  to  inflict 
punishment  unrestrained,  except  as  prompted  by  a  depraved 
heart  and  then  escape  responsibility. 

The  right  and  the  duty  of  using  force  follow  directly  from 
the  ideas  of  law  and  government.  The  Constitution  has  not 
left  this  matter  in  doubt.  It  states  that  the  President  "shall 
take  care  that  the  laws  be  faithfully  executed."2  Of  these  laws 
the  Constitution  is  supreme.3  If  he  have  not  the  power  in  every 
respect,  it  is  both  the  right  and  duty  of  Congress  to  supplement 
his  authority  by  appropriate  legislation.4  In  case  that  not  only 
individuals,  but  States  as  such  or  communities,  rebel  against  the 
laws  and  Constitution  the  right  of  the  Government  to  use  force 
can  no  longer  be  questioned.5  During  the  Civil  War  the  Presi- 
dent first  assumed  martial-law  powers.  Suspending  the  privilege 
of  the  writ  of  habeas  corpus  was  one  of  these.  The  legislature 
gradually  came  in  this  work  to  his  assistance.  The  Constitu- 
tion gives  Congress  power  to  pass  all  laws  necessary  and  proper 
for  carrying  into  execution  all  powers  vested  in  the  President 
as  head  of  the  Executive  Department.  The  means  and  instru- 
mentalities referred  to  as  within  the  authority  of  Congress  are 
not  enumerated  or  defined.  They  are  left  to  the  discretion  of 
the  legislature,  subject  only  to  the  restriction  that  they  be  not 
prohibited,  and  are  necessary  and  proper  for  carrying  into  exe- 
cution the  powers  mentioned.6  And  as  to  this,  "  it  is  not  to  be 
denied, ' '  said  the  Supreme  'Court  of  the  United  States,  ' '  that 
acts  may  be  adapted  to  the  exercise  of  lawful  power,  and  appro- 
priate to  it,  in  seasons  of  exigency,  which  would  be  inappro- 
priate at  other  times.7 

I.  27  State  Trials,  759.  2.  Article  2,  section  3.  3.  Article  6,  clause  2. 
4.  Article  r,  section  8,  clause  17.  5.  Von  Hoist,  Constitutional  Law, 
p.  45  ;  Prize  Cases,  2  Black.,  635.  6.  Article  1,  section  8,  clause  17. 
7.  12  Wallace,  457,  et  seq. 


INTRODUCTION.  1 7 

Speaking  of  the  act  of  March  3,  1863,  Mr.  Hare  observes 
that  it  ' '  virtually  established  martial  law  by  arming  the  Presi- 
dent and  the  officers  under  his  command  with  a  dictatorial  power 
to  deprive  any  man  whom  they  regarded  as  inimical  of  liberty 
and  property."  Without  acceding  to  this  proposition  in  its 
entirety,  we  may  recall  the  terms  of  praise  in  which  the  Supreme 
Court  referred  to  the  provisions  of  the  law  thus  inveighed 
against.  In  Beard  v.  Burts  the  defendant  had  shielded  himself 
behind  the  4th  section  of  the  act  and  the  act  amendatory  thereto 
of  May  n,  1866  ;  and  in  the  course  of  its  opinion,  reversing  the 
decision  of  the  Supreme  Court  of  Tennessee,  the  Supreme  Court 
of  the  United  States  remarked,  "  the  orders  of  which  the  acts 
speak  are  military  orders,  and  a  large  portion  of  such  orders  as 
is  well  known  are  merely  permissive  in  form.  They  necessarily 
leave  much  to  the  discretion  of  those  to  whom  they  are  ad- 
dressed. We  can  not  doubt  that  Congress  had  such  orders  in 
view,  and  that  its  action  was  intended  to  protect  against  civil 
suits  those  who  do  acts  either  commanded  or  authorized  by 
them."1  In  Mitchell  v.  Clarke  the  action  of  the  present  com- 
mander of  the  army,  then  a  department  commander,  in  enforc- 
ing martial  law  on  loyal  soil,  indirectly  came  up  before  the  Su- 
preme Federal  Tribunal  for  consideration.2  The  defendant 
strove  to  shelter  himself,  partially  at  all  events,  behind  the  same 
provision  of  law  as  the  defendant  in  the  other  case  just  cited  ; 
the  case  went  off  upon  another  point,  but  the  court  took  occa- 
sion to  refer  to  the  acts  of  Congress  in  question  in  terms  of 
highest  commendation.  So  in  Bean  v.  Beckwith,  where  the 
same  section  came  under  review,  the  object  of  the  law  was 
clearly  stated,  with  no  suggestion  against  the  constitutionality  ; 
while  in  Beckwith  v.  Bean,  which  was  a  continuation 
of  the  former  case,  the  court  remarked,  when  reversing  the  ac- 
tion of  the  Vermont  court,  that  the  jury  "  could  not  well  ignore 
the  important  fact  that  the  arrest  occurred  at  a  period  in  the 
country's  history  when  the  intensest  public  anxiety  pervaded 
all  classes  for  the  fate  of  the  Union." 

It  is  impossible  to  misunderstand  the  intention  and  effect  of 
the  various  laws  that  have  just  been  mentioned  and  others  of 
similar  import  affecting  the  liberty  and  property  of  civilians 

1.  5  Otto,  p.  438.         2.  no  U.  S.,  633. 


1 8  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

passed  during  and  just  subsequent  to  the  civil  war  and  the 
language  of  the  Supreme  Court  when  referring  to  them.  They 
place  on  firmest  ground  the  legality  of  the  exercise  of  martial  - 
law  power  by  Congress  in  cases  of  great  emergency.  It  has 
been  said  that  they  are  squarely  in  the  teeth  of  the  supposed 
opinion  of  the  Supreme  Court  in  the  celebrated  case  Ex  parte 
Milligan.1  That  point  is  not  here  conceded  ;  but  if  it  were  so, 
the  decisions  referred  to  are  of  a  subsequent  date  and  may  be 
supposed  to  modify  the  majority  views,  in  Ex  parte  Milligan, 
as  to  the  exercise  of  martial-law  power." 

The  reasoning  of  the  Supreme  Court  in  Luther  v.  Borden 
was  cogent,  and  demonstrated  the  necessity  of  the  exercise  of 
martial  law  when  the  civil  is  dethroned.  "The  power,"  said 
the  court,  "is  essential  to  the  existence  of  every  government, 
essential  to  the  preservation  of  order  and  free  institutions, 
and  is  as  necessary  to  the  States  of  this  Union  as  to  any 
other  government.  The  State  must  determine  what  degree 
of  force  the  crisis  demands.  And  if  the  government  deemed 
the  armed  opposition  so  formidable  and  so  ramified  throughout 
the  State  as  to  require  the  use  of  its  military  force  and  the  dec- 
laration of  martial  law,  we  see  no  ground  upon  which  this  court 
can  question  its  authority."3  The  acts  of  Congress  before 
mentioned,  and  the  decisions  of  the  Supreme  Court  commending 
them  in  strongest  terms,  do  but  transfer  the  applicability  of  this 
language  to  the  government  of  the  Union  and  its  legislature. 

If  Congress  has  not  the  power  to  institute  martial  law  it  prob- 
ably has  not  authority  to  pass  an  indemnity  bill  covering  acts 
taken  under  that  law  when  enforced  by  the  Executive  Depart- 
ment ;  for  it  would  be  difficult  to  derive  the  indemnity  power 
from  any  source  from  which  the  martial-law  power  would  not 
equally  flow.  Yet  the  acts  of  Congress  in  question  were  in 
nature  and  effect  bills  of  indemnity  ;  this  fact  the  Supreme  Court 
in  numerous  opinions  emphasized,  not  in  the  language  of  dis- 
approbation, but  in  eulogistic  terms. 

"It  would  seem  to  be  conceded,"  it  has  been  remarked, 
"  that  the  power  to  suspend  the  writ  of  habeas  corpus  and  that 
of  proclaiming  martial  law  include  one  another.     *     *    The 

I.  4  Wallace,  21  ;    Hare,  Constitutional  Law,  v.   2,  p.  971.  2.  Hare, 

Constitutional  Law,  V.  2,  p.  970,  et  seq-        3.  7  Howard,  45. 


INTRODUCTION.  19 

right  to  exercise  the  one  power  implies  the  right  to  exercise  the 
other. ' '  1 

In  the  Reconstruction  Acts  of  1867  Congress  exercised  the 
martial-law  power.  The  authority  was  sustained  by  the  Su- 
preme Court  in  a  number  of  decisions.2  In  Texas  v.  White  it 
was  held  that  this  was  in  pursuance  of  the  duty  imposed  on  the 
general  government  to  guarantee  to  every  State  a  republican 
form  of  government.3  But  in  this  discussion  it  matters  not 
what  the  object  was.  The  question  here  is  not  what  objects 
Congress  constitutionally  may  have  in  view  by  its  legislation. 
We  regard  here  only  the  means  it  makes  use  of  to  accomplish 
those  objects.  Martial  law  is  never,  under  constitutional  gov- 
ernments, its  own  end  ;  like  war,  of  which  it  may  be  a  fore- 
runner or  sequel,  martial  law  is  a  means,  an  instrument  for 
the  attainment  of  some  ulterior  purpose.  Regarded  in  this 
light  we  have  here  properly  to  inquire  not  what  the  Recon- 
struction Acts  were  intended  to  accomplish,  but  the  means 
adopted  through  these  acts  for  the  attainment  of  the  end  in 
view. 

Doing  this,  we  see  the  military  raised  above  the  civil  power, 
and  so  securely  that  the  President  even  could  not  depose  it.  The 
sword  took  precedent  of  all  else.  Courts  and  legislatures  waited 
the  soldier's  decree.  If  they  acted  it  was  at  his  bidding  or  with 
his  permission.  This  was  martial  law.  We  are  not  interested 
in  words.  If  martial  law  sounds  too  harshly,  call  this  rule  of 
the  sword  something  else.  That,  however,  will  not  change  the 
nature  of  the  fact.  If  not  so  termed  it  still  remains  martial 
law. 

The  Constitution  gives  to  Congress  power  to  declare  war, 
grant  letters  of  marque  and  reprisal,  and  to  make  rules  con- 
cerning captures  on  land  and  water ;  to  raise  and  support 
armies.  Congress  is  authorized  to  make  all  laws  necessary  and 
proper  to  carry  into  effect  the  granted  powers.  The  measures 
to  be  taken  in  carrying  on  war  and  to  suppress  insurrection  are 
not  enumerated.  The  decision  of  all  such  questions  rests 
wholly  with  those  to  whom  the  substantial  powers  involved 
are  confided  by  the  Constitution.     Moreover,  it  is  a  well-recog- 

1.  9  Amer.  L,aw  Register,  507-8  ;  Ex  parte  Field,  5  Blatchford,  82  ;  Hal- 
leck,  chap.  15,  sec.  27  ;  R.  B.  Curtis,  "  Executive  Power,"  1862. 

2.  7  Wallace,  701  ;  13  Wallace,  646.         3.  7  Wallace,  708. 


20  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

nized  principle  not  only  that  it  is  not  indispensable  that  the 
existence  of  any  power  claimed  can  be  found  in  the  words  of 
the  Constitution,  but  it  need  not  be  clearly  and  directly  trace- 
able to  a  particular  one  of  the  specified  powers.  Its  existence 
may  be  deduced  fairly  from  more  than  one  of  the  substantive 
powers,  expressly  defined,  or  from  all  combined.  It  is  allow- 
able to  group  together  any  number  of  them  and  infer  from  them 
all  that  the  power  claimed  has  been  conferred.1  Many  substan- 
tive powers  granted  to  Congress  are  not  construed  literally,  and 
the  government  could  not  exist  if  they  were.  Thus  the  power 
to  carry  on  war  is  conferred  by  the  power  to  declare  war.  The 
auxiliary  powers,  those  necessary  and  appropriate  to  the  execu- 
tion of  other  powers  singly  described,  are  as  certainly  given  as 
are  the  express  powers  to  which  they  are  incident.  They  are 
not  catalogued,  no  list  of  them  is  made,  but  they  are  grouped 
in  the  last  clause  of  section  8  of  the  ist  article  before  cited, 
and  granted  in  the  same  words  in  which  all  other  powers  are 
granted  to  Congress.2 

It  remains  only  to  consider  whether  martial  law  can  be  an 
appropriate  war  measure.  If  so,  it  may  be  invoked  by  that 
department  to  which  is  confided  the  power  to  provide  means  for 
successfully  conducting  hostilities.  That  it  may  be  a  proper 
war  measure  does  not  admit  of  doubt.  We  have  not  had  a  war 
in  which,  in  one  form  or  another,  martial-law  powers  have  not 
time  and  again  been  exercised,  nor  are  we  singular  in  this  re- 
gard. All  nations  who  are  called  upon  either  to  repel  invasion 
or  suppress  extensive  rebellion  have  had  a  similar  experience. 

Being  thus  an  appropriate  war  power — an  instrumentality 
which  on  proper  occasions  may  be  used  for  our  own  advantage 
and  the  discomfiture  of  the  opposite  party — the  martial-law 
power  must  be  possessed  by  the  department  of  the  government 
which  not  only  declares  war,  but  must  provide  the  means  for 
carrying  it  on — this,  although  on  occasions  of  pressing  neces- 
sity the  power  likewise  may  be  assumed  by  the  Executive  De- 
partment, without  previous  legislative  sanction. 

I.  ii  Wallace,  506;   12  Wallace,  534.  2.    12  Wallace,  544. 


POWER   TO   DECLARE   WAR.  21 


PART  I. 

MILITARY  GOVERNMENT. 


CHAPTER  I. 

POWER  TO   DECLARE   WAR. 


Military  Government  is  that  which  is  established  by  a  com- 
mander over  occupied  enemy  territory.  To  entitle  it  to  recog- 
nition it  is  necessary  that  the  authority  of  the  State  to  which 
the  territory  belongs  should  have  ceased  there  to  be  exercised. 

The  establishment  of  military  government  is  considered  to 
be,  primarily,  for  the  advantage  of  the  invader  ;  but  this  is 
more  in  appearance  than  reality,  arising  from  the  circum- 
stance that  the  occupying  army  alone  has  the  power  at  the 
time  to  maintain  government  of  any  kind  ;  in  fact,  such  gov- 
ernment is  of  most  advantage  to  the  inhabitants  of  the  territory 
over  which  it  is  instituted.  Without  it  they  would  be  left  a 
prey  to  the  uncertain  demands  of  a  dominant  military,  which, 
without  perhaps  intending  it  and  through  mere  want  of  system, 
might  oppress  them  ;  with  it,  so  long  as  they  conform  to  the 
will  of  their  new  rulers,  they  generally  are  left  unmolested  in 
ordinary  domestic  and  business  relations,  and  largely  in  munic- 
ipal affairs. 

The  right  of  making  war,  of  which  military  government  is 
an  incident,  as  well  as  that  of  authorizing  retaliations,  reprisals, 
and  other  forcible  means  of  settling  international  disputes,  be- 
longs to  the  supreme  power  in  the  State.1 

Of  the  absolute  international  rights  of  States,  one  of  the 
most  essential  and  important,  and  that  which  lies  at  the  foun- 
dation of  all  the  rest,  is  the  right  of  self-preservation.  It  is  not 
only  a  right  with  respect  to  other  States,  but  a  duty  with  re- 

i.  Woolsey,  section  125. 


22  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

spect  to  its  own  members,  and  the  most  solemn  and  important 
which  the  State  owes  to  them.  This  right  necessarily  involves 
all  other  incidental  rights,  which  are  essential  as  means  to  give 
effect  to  the  principal  end.1  One  of  these,  and  that  without 
which  all  others  combined  would  be  powerless  to  preserve  the 
social  state,  is  the  right  to  declare  and  carry  on  war. 

War  may  originate  in  various  ways.2  A  foreign  fleet  may 
attack  ours  in  a  remote  sea.  Several  engagements  occurred 
between  our  own  ships  and  those  of  France  in  the  latter  part  of 
the  last  century  ;  and,  but  for  the  fact  that  other  projects  then 
occupied  the  ambitious  Bonaparte,  this  would  doubtless  have 
resulted  in  war.  A  foreign  power  may  send  troops  into  our 
territory  with  hostile  intent,  without  any  formal  declaration  of 
war.  The  war  of  1812  was  formally  declared  by  act  of  Con- 
gress. Civil  war  may  break  out  as  either  a  servile  war,  like 
the  Sepoy  revolt  of  1857-8,  or  a  rebellion,  as  of  the  Colonies 
in  1775,  and  the  rebellion  of  1861,  without  any  formal  declara- 
tion.1 In  1846  it  was  announced  to  the  country  by  act  of  Con- 
gress that,  by  the  act  of  the  Republic  of  Mexico,  war  existed 
between  that  government  and  the  United  States.4  But  this 
was  a  mere  formality.  The  act  of  Congress  neither  authorized 
nor  legalized  the  war.  That  had  been  done  long  before  by  the 
contending  armies  on  the  Rio  Grande.  Besides,  many  bellig- 
erent acts  are  resorted  to  sometimes  which  do  not  and  scarcely 
are  expected  to  lead  to  war.5 

The  parties  belligerent  in  a  public  war  are  independent  na- 
tions. But  it  is  not  necessary  to  constitute  war  that  both  par- 
ties should  be  acknowledged  as  independent  nations  or  sover- 
eign States.  A  war  may  exist  where  one  of  the  belligerents 
claims  sovereign  rights  as  against  the  other.  Insurrection 
against  a  government  may  or  may  not  culminate  in  an  or- 
ganized rebellion  ;  but  a  civil  war  always  begins  by  insurrec- 
tion against  the  lawful  authority  of  the  government.  A  civil 
war  is  never  solemnly  declared  ;  it  becomes  such  by  its  acci- 
dents, the  number,  power,  and  organization  of  the  persons  who 
originate  and  carry  it  on.     The  true  test  of  its  existence,  as 

1.  Dana's  Wheaton,  p.  89,  sec.  61.  2.  See  Cobbett,  p.  no  et  seq.,  for 

illustrations.  3.  Whiting,  War  Powers,  38.  4.  Act  May  13,  1846 

5.  See  "Steps  Short  of  War,"  Cobbett,  p.  95  et  seq. 


POWER   TO   DECLARE   WAR.  23 

found  in  the  writings  of  the  sages  of  the  common  law,  may  be 
thus  summarily  stated:  "When  the  regular  course  of  justice 
is  interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  the 
courts  can  not  be  kept  open,  civil  war  exists,  and  hostilities 
may  be  prosecuted  on  the  same  footing  as  if  those  opposing 
the  government  were  foreign  enemies  invading  the  laud."  J 

While  the  formal  declaration  of  war  can  only  be  made  by 
Congress,  it  becomes  necessary  sometimes  to  prosecute  hostili- 
ties without  such  declaration.  The  President  then  must  act, 
for  the  time  being,  at  least,  independently  of  Congress.  The 
executive  power  is  vested  in  the  President.2  When,  therefore, 
the  authorities  of  the  Union  are  assailed  either  by  foreign  foes, 
as  on  the  Rio  Grande  in  1846,  or  by  domestic  ones,  as  in  1861, 
it  is  the  duty  of  the  President  to  repel  force  by  force  without 
waiting  for  any  formal  declaration  of  war.  This  military  au- 
thority of  the  President  is  not  incompatible  with  the  war  powers 
of  Congress.  Whether  the  President  in  fulfilling  his  duties 
as  commander-in-chief  in  suppressing  an  insurrection  has  met 
with  armed  hostile  resistance,  and  a  civil  war  of  such  alarming 
proportions  as  will  compel  him  to  accord  to  insurgents  the  char- 
acter of  belligerents,  is  a  question  to  be  decided  by  him,  and 
' '  this  court, ' '  remarked  the  Supreme  Court  of  the  United  States, 
' '  must  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  government  to  which  the  power  was  en- 
trusted. The  President  must  determine  what  degree  of  force 
the  crisis  demands. ' ' 3 

Nor  is  it  necessary  to  the  exercise  of  the  war  powers  by  the 
President  in  foreign  more  than  in  civil  war  that  there  should  be 
a  preceding  act  of  Congress  declaring  it.  There  are  at  least 
two  parties  to  a  war.  It  is  a  state  of  things,  and  not  necessarily 
an  act  of  legislative  will.  If  a  foreign  power  springs  a  war 
upon  us  by  sea  or  land  during  a  recess  of  Congress,  exercising 
meanwhile  all  belligerent  rights  of  capture,  the  question  is, 
whether  the  President  can  repel  war  with  war,  and  make  pris- 
oners and  prizes  by  the  army,  navy,  and  militia  before  Con- 
gress can  meet,  or  whether  that  would  be  illegal  ? 

In  the  case  of  the  Mexican  war  there  was,  as  has  been  seen, 
only  a  subsequent  recognition  of  a  state  of  war  by  Congress  ; 

1.  Prize  Cases,  2  Black,  666.         2.  Section  3,  art.  2,  Constitution  U.  S. 
3.  2  Black,  668. 


24  MILITARY    GOVERNMENT  AND   MARTIAL  LAW. 

yet  all  the  prior  acts  of  the  President  were  lawful.  It  is  enough 
to  state  the  proposition.  If  it  were  not  so,  there  would  be  no 
protection  to  the  State.  The  question  is  not  what  would  be 
the  result  of  a  conflict  between  the  executive  and  legislature 
during  an  actual  invasion  by  a  foreign  enemy,  the  legislature  re- 
fusing to  declare  war.  That  is  not  a  supposable  case.  But  it 
is  as  to  the  power  of  the  President,  before  Congress  shall  have 
acted,  in  case  of  a  war  actually  existing.  It  is  not  as  to  the  . 
right  of  the  President  to  initiate  a  war,  as  a  voluntary  act  of 
sovereignty.  That  power  is  vested  only  in  Congress.  In  case 
of  civil  war  the  President  may,  in  the  absence  of  any  act  of  Con- 
gress on  the  subject,  meet  it  by  the  exercise  of  belligerent 
rights.  The  same  rule  governs  if  the  attack  comes  from  a 
foreign  foe. 

These  principles  have  been  settled  by  the  Supreme  Court  of 
the  United  States.  They  give  stability  to  our  institutions 
against  the  assaults  of  enemies  from  both  without  and  within.1 
The  country  is  not  left  helpless  to  receive  the  assaults  of  the 
enemy.  The  President  meets  the  emergency  alone  until  Con- 
gress can  act. 

The  rule  of  constitutional  construction  by  which  powers  ex- 
pressly conferred  carry  with  them  by  implication  all  others  neces- 
sary to  render  those  conferred  effective  has  already  been  ad- 
verted to.  Constitutional  authority  is  not  given  in  vain. 
Hamilton  said  on  this  point :  ' '  The  authorities  essential  to  the 
common  defense  are  these  :  to  raise  armies  ;  to  build  and  equip 
fleets  ;  to  prescribe  rules  for  the  government  of  both  ;  to  direct 
their  operations  and  provide  for  their  support.  These  powers 
ought  to  exist  without  limitation,  because  it  is  impossible  to 
foresee  or  to  define  the  extent  and  variety  of  national  exigencies, 
and  the  correspondent  extent  and  variety  of  the  means  necessary 
to  satisfy  them.  The  circumstances  which  endanger  the  safety 
of  nations  are  infinite,  and  for  this  reason  no  constitutional 
shackles  can  wisely  be  imposed  on  the  power  to  which  the  care 

of  it  is  committed This  power  ought  to  be  under 

the  direction  of  the  same  councils  which  are  appointed  to  pre- 
side over  the  common  defense It  must  be  admitted 

as  a  necessary  consequence  that  there  can  be  no  limitation  of 

i.   Prize  cases,  2  Black.,  635;  Texas  v.  White,  7  Wallace,  700. 


POWER   TO   DECLARE   WAR.  25 

that  authority  which  is  to  provide  for  the  protection  and  de- 
fense of  the  community  in  any  matter  essential  to  its  efficacy, 
that  is,  in  any  matter  essential  to  the  formation,  direction,  and 
support  of  the  national  forces."  '  This  proposition,  he  further 
says,  rests  on  two  axioms  as  simple  as  they  are  universal  :  first, 
the  means  ought  to  be  proportionate  to  the  ends  ;  second,  the 
persons  from  whose  agency  the  attainment  of  the  end  is  ex- 
pected ought  to  possess  the  means  by  which  it  is  to  be  attained. 
Chief  Justice  Marshall,  speaking  for  the  Supreme  Court,  has 
said  :  "The  Government,  then,  of  the  United  States  can  claim 
no  powers  which  are  not  granted  to  it  by  the  Constitution  ;  and 
the  powers  actually  granted  must  be  such  as  are  given  either 
expressly  or  by  necessary  implication.  On  the  other  hand,  this 
instrument,  like  every  other  grant,  is  to  have  a  reasonable  con- 
struction according  to  the  import  of  its  terms  ;  and  where  a 
power  is  expressly  given  in  general  terms  it  is  not  to  be  re- 
strained to  particular  cases,  unless  that  construction  grow  out 
of  the  contract  expressly,  or  by  necessary  implication.2  Con- 
gress may  employ  such  means  and  pass  such  laws  as  it  may 
deem  necessary  to  carry  into  execution  the  great  powers 
granted  by  the  Constitution  ;  and  necessary  means,  in  the  sense 
of  the  Constitution,  does  not  import  an  absolute  physical  ne- 
cessity, so  strong  that  one  can  not  exist  without  the  other.  It 
stands  for  any  means  calculated  to  produce  the  end.  The  word 
necessary  admits  of  all  degrees  of  comparison.  A  thing  may 
be  necessary,  or  very  necessary,  or  absolutely  and  indispensably 
necessary.  The  word  is  used  in  various  senses,  and  in  its  con- 
struction the  subject,  the  context,  the  intention,  are  all  to  be 
taken  into  view.  The  powers  of  government  are  given  for  the 
welfare  of  the  nation.  They  were  intended  to  endure  for  ages 
to  come,  and  to  be  adapted  to  the  various  crises  in  human 
affairs.  To  prescribe  the  specific  means  by  which  government 
should  in  all  time  execute  its  powers,  and  to  confine  the  choice 
of  means  to  such  narrow  limits  as  should  not  leave  it  in  the 
power  of  Congress  to  adopt  any  which  might  be  appropriate 
and  conducive  to  the  end,  would  be  most  unwise  and  pernicious, 
because    it  would    be    an  attempt  to  provide,   by    immutable 

1.  Federalist,  23,  pp. 95-6. 

2.  Martin  v.  Hunter's  Lessee,  1  Wheaton,  305. 


6  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

rules,  for  exigencies  which,  if  foreseen  at  all,  must  have  been 
foreseen  dimly,  and  would  deprive  the  legislature  of  the 
capacity  to  avail  itself  of  experience,  or  to  exercise  its  reason 
and  accommodate  its  legislation  to  circumstances.  If  the  end  be 
legitimate  and  within  the  scope  of  the  Constitution,  all  means 
which  are  appropriate  and  plainly  adapted  to  this  end,  and 
which  are  not  prohibited  by  the  Constitution,  are  lawful."  ! 

Such  are  the  views  of  some  of  the  great  expounders  of  the 
Constitution.  That  instrument  was  ordained  and  established 
by  the  people  in  order  to  form  a  more  perfect  union,  establish 
justice,  insure  domestic  tranquility,  provide  for  the  common 
defense,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  themselves  and  their  posterity.  We  should  dis- 
credit the  wisdom  of  those  who  established  the  government  to 
deny  that  they  bestowed  upon  the  republic,  created  by  and  for 
themselves,  the  right,  the  duty,  and  the  powers  of  self-preser- 
vation under  any  and  all  circumstances.  2  The  common  defense 
is  provided  for  in  the  war  powers  of  Congress  and  the  President. 
This  will  be  so  while  war  remains  the  last  argument,  not  of 
kings  only,  but  of  nations  as  well. 

One  of  the  powers  expressly  given  Congress  is  to  provide  for 
the  common  defense  and  general  welfare  of  the  United  States  ; 3 
while  the  President  is  made  commander-in-chief  of  the  Army 
and  Navy  and  of  the  militia  of  the  several  States  when  called 
into  actual  service.4  These  powers,  together  with  that  of  Con- 
gress to  declare  war,  to  raise  and  support  armies,  complete  the 
general  war  powers  of  the  government.  They  may  be  exer- 
cised to  execute  the  laws  of  the  Union,  suppress  insurrection, 
and  repel  invasions  ;  and  on  military  principles  invasion  may 
be  repelled,  as  was  illustrated  by  our  experience  in  the  war  of 
1812  and  the  Mexican  war,  either  by  awaiting  the  enemy  here 
or  carrying  hostilities  into  his  own  country. 

Another  power  given  Congress  is  to  define  and  punish  offences 
against  the  law  of  nations,5  thus  giving  that  law  express  con- 
stitutional recognition.  The  law  of  nations  has  been  defined 
to  be  the  rules  of  conduct  regulating  the  intercourse  of  States. 

1.  McCullock    v.    Maryland,  4  Wheaton,  316.  2.  Whiting,  War 

Powers,  p.  7.  3.  Sec.  8,  art.  1,  Constitution.  4.  Sec.  2,  art.  2,  Con- 

stitution. 5.  Clause  9,  sec.  8,  art.  1,  Constitution. 


POWER    TO    DECLARE    WAR.  2"] 

Hence  without  the  express  constitutional  recognition  indicated, 
it  would  be  binding  on  the  government  as  one  of  the  family  of 
nations.  It  modifies  the  relations  of  independent  States  in 
peace,  and  sets  limits  to  their  hostilities  in  war.  When  war 
breaks  out,  the  rights,  duties,  and  obligations  of  parties  belliger- 
ent spring  from  and  are  measured  by  the  laws  of  war,  a  branch 
of  the  law  of  nations.  When  war  exists,  whatever  is  done  in 
accordance  with  the  laws  of  war  is  not  regarded  as  arbitrary, 
but  lawful,  justifiable,  and  indispensable  to  public  safety.1 

i.   Bluntschli,  i,  sec.  40. 


MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 


CHAPTER  II. 

RIGHT   TO   ESTABLISH   MILITARY   GOVERNMENT. 

The  Constitution  has  placed  no  limit  upon  the  war  powers  of 
the  government,  but  they  are  regulated  and  limited  by  the  laws 
of  war.  One  of  these  powers  is  the  right  to  institute  military 
governments. * 

First — over  conquered  foreign  territory. 

The  erection  of  such  governments  over  the  persons  and  terri- 
tory of  a  public  enemy  is  an  act  of  war  ;  is  in  fact  the  exercise 
of  hostilities  without  the  use  of  unnecessary  force.  It  derives 
its  authority  from  the  customs  of  war,  and  not  the  municipal 
law.2  It  is  a  mode  of  retaining  a  conquest,  of  exercising  a 
supervision  over  an  unfriendly  population,  and  of  subjecting 
malcontent  non-combatants  to  the  will  of  a  superior  force,  so  as 
to  prevent  them  from  engaging  in  hostilities,  or  inciting  insur- 
rections or  breaches  of  the  peace,  or  from  giving  aid  and  com- 
fort to  the  enemy.  Large  numbers  of  persons  may  thus  be 
held  morally  and  physically  in  subjection  to  a  comparatively 
small  military  force.  Contributions  may  be  levied,  property  be 
confiscated,  commerce  may  be  restrained  or  forbidden,  for  the 
same  reasons  which  would  justify  the  repression  of  the  open 
hostilities  of  the  inhabitants  by  force  of  arms.3 

The  instituting  military  government  in  any  country  by  the 
commander  of  a  foreign  army  there  is  not  only  a  belligerent 
right,  but  often  a  duty.  It  is  incidental  to  the  state  of  war,  and 
appertains  to  the  law  of  nations.  ' '  The  rights  of  occupation, ' ' 
says  Hall,  ' '  may  be  placed  upon  the  broad  foundation  of  simple 
military  necessity."  4  The  commander  of  the  invading,  occu- 
pying, or  conquering  army  rules  the  country  with  supreme 
power,  limited  only  by  international  law,  and  the  orders  of  his 
government.5  For,  by  the  law  of  nations,  the  occupatio  belli ca 
transfers  the  sovereign  power  of  the  enemy's  country  to  the 

I.  Ex parteM\Yi\<g2L\iy  4  Wallace,  142.      2.  Maine,  p.  179.      3.  Whiting,  272. 
4.    P.  430.         5.  Hall,  p.  430;  Manual,  p.  314. 


RIGHT    TO    ESTABLISH    MILITARY    GOVERNMENT.  29 

conqueror.1  An  army  in  the  enemy's  country  may  do  all  things 
allowed  by  the  rules  of  civilized  warfare,  and  its  officers  and  sol- 
diers will  be  responsible  only  to  their  own  government.2  The 
same  rule  applies  to  our  own  territory  permanently  occupied  by 
the  enemy.  Castine,  Maine,  was  occupied  by  the  British  Sep- 
tember 1  st,  1 8 14,  and  retained  by  them  until  after  the  treaty  of 
peace,  February,  1815.  By  this  conquest  and  military  occupa- 
tion the  enemy  acquired  that  firm  possession  which  enabled 
him  to  exercise  the  fullest  rights  of  sovereignty  over  that  place. 
The  sovereignty  of  the  United  States  over  the  territory  was,  for 
the  time  being,  of  course,  suspended.3 

As  commander-in-chief  the  President  is  authorized  to  direct 
the  movements  of  the  naval  and  military  forces,  and  to  employ 
them  in  the  manner  he  may  deem  most  effectual  to  harass,  con- 
quer, and  subdue  the  enemy.  He  may  invade  the  hostile  country 
and  subject  it  to  the  sovereignty  and  authority  of  the  United 
States.  When  Tampico,  Mexico,  had  been  captured  and  the 
state  of  Tamaulipas  subjugated,  other  nations  were  bound  to 
regard  the  country,  while  our  possession  continued,  as  the  terri- 
tory of  the  United  States  and  respect  it  as  such.  For,  by  the 
laws  and  usages  of  nations,  conquest  gives  a  valid  title,  while 
the  victor  maintains  the  exclusive  possession  of  the  conquered 
countr)\  The  power  of  the  President,  under  which  this  con- 
quest was  made,  was  that  of  a  military  commander  prosecuting 
a  war  waged  against  a  public  enemy  by  the  authority  of  his 
government.4 

Upon  the  acquisition,  in  the  year  1846,  by  the  arms  of  the 
United  States  of  the  Territory  of  New  Mexico,  the  officer 
holding  possession  for  the  United  States,  by  virtue  of  the  power 
of  conquest  and  occupancy,  and  in  obedience  to  the  duty  of 
maintaining  the  security  of  the  inhabitants  in  their  persons  and 
property,  ordained  under  the  sanction  and  authority  of  the  Presi- 
dent a  provisional  or  temporary  government  for  the  country.5 
Nor  does  it  signify  what  name  is  given  a  government  estab- 
lished by  arms.     Its  essence  is  military  ;    it  is  a  government 

1.  Opinions  Attorneys-General,  8,  p.  369.  2.  Mitchell  v.  Clark,  no 
U.  S.,  648  ;  Coleman  v.  Tennessee,  97  U.  S.,  p.  517.  3.  U.  S  v.  Rice, 
4  Wheaton,  246.  4.  Fleniming  v.  Page,  9  Howard,  615  ;  American  In- 
surance Co.  v.  Canter,  1  Peters,  542.  5.  Leitensdorfer  v.  Webb,  20 
Howard,  177. 


30  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

of  force.  In  Cross  v.  Harrison  the  Supreme  Court  of  the  United 
States  first  calling  attention  to  the  fact  that  California,  or 
the  port  of  San  Francisco,  had  been  conquered  by  the  arms 
of  the  United  States  as  early  as  1846;  that  shortly  afterwards 
the  United  States  had  military  possession  of  all  of  Upper  Cali- 
fornia ;  that  early  in  1847  the  President,  as  constitutional  com- 
mander-in-chief of  the  army  and  navy,  authorized  the  military 
and  naval  commanders  there  to  exercise  the  belligerent  right  of 
a  conqueror,  to  form  a  civil  government  for  the  conquered 
country,  and  to  impose  duties  on  imports  and  tonnage  as  mili- 
tary contributions  for  the  support  of  the  government  and  of  the 
army  which  had  the  conquest  in  possession ;  observed  as 
to  this  that  no  one  could  doubt  but  that  these  orders  of  the 
President,  and  the  action  of  our  army  and  navy  commanders  in 
California  in  conformity  with  them,  were  according  to  the  law 
of  arms  and  the  right  of  conquest.1 

The  governments  thus  established  in  New  Mexico  and  Cali- 
fornia were  indeed  styled  ' '  civil ; ' '  but  they  were  in  fact  mili- 
tary. The  milder  name  was  a  matter  of  state  policy.  The 
government  of  the  United  States  had  resolved  to  wrest  those 
territories  from  Mexico,  and  annex  them  to  the  Federal  do- 
main. By  the  use  of  gentle  terms  the  inhabitants  were  to  be 
conciliated,  the  weight  of  the  mailed  hand  rendered  seemingly 
less  oppressive,  though  its  grasp  was  never  relaxed. 

The  rulings  of  State  courts  are  to  the  same  effect.  The 
Supreme  Court  of  Tennessee,  in  Rutledge  v.  Fogg,'2  remarked 
that  ordinarily  the  right  of  one  belligerent  nation  to  occupy 
and  govern  territory  of  the  other,  while  in  its  military  posses- 
sion, is  one  of  the  incidents  of  the  war  and  flows  directly  from 
the  fact  of  conquest ;  that  the  authority  for  this  is  derived  di- 
rectly from  the  laws  of  war,  as  established  by  the  usage  of  the 
world,  confirmed  by  the  writings  of  publicists  and  the  decisions 
of  courts  ;  and  that  the  constitution  or  political  institutions  of 
the  conqueror  are  not,  therefore,  looked  to  directly  for  authority 
to  establish  a  government  for  the  territory  of  the  enemy  in  his 
possession  during  his  military  occupation.  It  is  a  power  that 
appertains  to  the  fact  of  adverse  military  possession.     On  this 

1.   16  Howard,  190.  2.  3  Coldwell,  554. 


RIGHT   TO    ESTABLISH    MILITARY    GOVERNMENT.  3 1 

ground  that  tribunal  upheld  the  decisions  of  the  military  com- 
missions convened  at  Memphis,  Tennessee,  in  1863,  by  the 
commanding  general  of  the  Union  forces.1 

Title  by  conquest  is  acquired  and  maintained  by  force  of 
arms.  The  conqueror  prescribes  its  limits.  Humanity,  how- 
ever, acting  on  public  opinion,  has  established,  as  a  general 
rule,  that  the  conquered  shall  not  be  wantonly  oppressed,  and 
that  their  condition  shall  remain  as  eligible  as  is  compatible 
with  the  objects  of  the  conquest.2 

When  in  the  House  of  Commons,  May,  185 1,  it  was  said 
that  martial  law  had  been  established  by  the  British  com- 
mander in  1 8 14  in  the  south  of  France,  military  government, 
and  not  martial  law,  in  the  sense  we  use  it,  was  meant.  And 
so  of  the  remarks  of  the  Duke  of  Wellington,  the  commander 
referred  to,  in  the  House  of  Lords,  April  i,  1 851,  in  the  debate 
on  the  Ceylon  rebellion  when  he  said  :  "I  contend  that  martial 
law  is  neither  more  nor  less  than  the  will  of  the  general  who 
commands  the  army.  In  fact  martial  law  means  no  law  at  all. 
Therefore,  the  general  who  declares  it,  and  commands  that  it 
be  carried  into  execution,  is  bound  to  lay  down  distinctly  the 
rules  and  regulations  and  limits  according  to  which  his  will  is 
to  be  carried  out. ' ' 

Plainly  what  the  Duke  of  Wellington  here  referred  to  was 
not  martial  law  as  a  domestic  fact,  and  as  the  term  is  used  in 
this  treatise  ;  he  was  speaking  of  his  conduct  in  foreign  terri- 
tory, and  the  methods  there  pursued  to  establish  and  enforce 
the  rule  of  the  conqueror. 

In  Thorington  v.  Smith  the  Supreme  Court  of  the  United 
States,  adverting  to  the  fact  that  military  governments  were 
classed  by  publicists  as  de  facto,  observed  that  they  more  pro- 
perly might  be  denominated  governments  of  paramount  force. 
Their  characteristics  were  said  to  be  (1)  that  their  existence  is 
maintained  by  active  military  power,  and  (2)  that  while  they 
exist  they  must  necessarily  be  obeyed  in  civil  matters  hy 
private  citizens  who,  by  acts  of  obedience,  rendered  in  submis- 
sion to  such  force,  do  not  become  responsible,  as  wrong-doers, 
for  these  acts,  though  not  warranted  by  the  laws  of  the  right- 

1.  Hefferman  v.  Porter,  6  Coldwell,  391  ;  Isbell  v.  Farris,  5  Coldwell,  426. 

2.  Johnson  v.  Mcintosh,  8  Wallace,  589. 


32  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

ful  government ;  that  actual  governments  of  this  sort  are  es- 
tablished over  districts  differing  greatly  in  extent  and  condi- 
tions ;  and  that  they  are  usually  administered  directly  by 
military  authority,  but  they  may  be  administered,  also,  by 
civil  authority,  supported  more  or  less  directly  by  military  force.1 
By  ' '  rightful  government ' '  is  here  meant  that  to  which  the 
permanent  allegiance  of  the  people  is  due. 

Such,  then,  is  the  authority,  under  the  laws  of  war  and  the 
war  powers  of  the  government,  for  the  establishment  of  military 
governments  without  the  boundaries  of  the  United  States. 

Second,  within  districts  occupied  by  rebels  treated  as  bel- 
ligerents. 

The  constitutional  power  to  establish  such  governments 
within  States  or  districts  occupied  by  rebels  treated  as  belliger- 
ents is  as  clear  as  the  right  to  so  govern  foreign  territory. 

The  experience  of  the  civil  war  of  1861-65  frequently,  in- 
deed constantly,  furnished  illustrations  of  this  branch  of  mili- 
tary government. 

The  object  of  the  national  government  in  that  contest  was 
neither  conquest  nor  subjugation,  but  the  overthrow  of  the  in- 
surgent organization,  the  suppression  of  insurrection,  and  the 
re-establishment  of  legitimate  authority.  In  the  attainment  of 
these  ends  it  became  the  duty  of  the  Federal  authorities  when- 
ever the  insurgent  power  was  overthrown,  and  the  territory 
which  had  been  dominated  by  it  was  occupied  by  the  national 
forces,  to  provide  as  far  as  possible,  so  long  as  the  war  continued, 
for  the  security  of  persons  and  property  and  for  the  adminis- 
tration of  justice.  The  duty  of  the  National  Government,  in 
this  respect,  was  no  other  than  that  which,  as  just  shown,  de- 
volves upon  the  government  of  a  regular  belligerent  occupying, 
during  war,  the  territory  of  another  independent  belligerent. 
It  was  a  military  duty,  to  be  performed  by  the  President  as 
Commander-in-Chief,  and  entrusted  as  such  with  the  direction  of 
the  military  force  by  which  the  occupation  was  held.2  So  long 
as  the  war  continued  it  can  not  be  denied  that  the  President 
might  institute  temporary  governments  within  insurgent  dis- 
tricts occupied  by  the  national  forces.3  In  carrying  them  into 
effect   he   acted   through    his   duly   constituted   subordinates. 

1.  8  Wallace,  9.  2.  Grapeshot,  9  Wallace,  132. 

3.  Texas  v.  White,  7  Wallace,  730. 


RIGHT   TO    ESTABLISH    MILITARY    GOVERNMENT.  33 

Though  that  war  was  not  between  independent  nations,  but 
between  factions  of  the  same  nation,  yet,  having  taken  the 
proportions  of  a  territorial  war,  the  insurgents  having  become 
formidable  enough  to  be  recognized  as  belligerents,  the  doc- 
trine of  international  law  regarding  the  military  occupation  of 
enemy's  country  was  held  to  apply. 

The  character  of  government  to  be  established  over  con- 
quered territory  depends  entirely  upon  the  laws  of  the  dominant 
power,  or  the  orders  of  the  military  commander.1  Against  the 
persons  and  property  of  rebels  to  whom  belligerent  rights  have 
been  conceded,  the  President  may  adopt  any  measures  author- 
ized by  the  laws  of  war,  unless  Congress  otherwise  determines. 
The  protection  of  loyal  citizens  and  their  property  located 
within  the  rebellious  district  is  not  a  right  which  they  can  de- 
mand but  entirely  a  matter  of  expediency. 

It  is  well  settled  that  where  the  rebels  are  conceded  bellig- 
erent rights  a  civil  or  domestic  war  will,  during  its  continuance, 
confer  all  the  rights  and  be  attended  by  all  the  incidents  of  a 
contest  between  independent  nations.  One  object  of  military 
government  is  to  render  the  hold  of  the  conqueror  secure  and 
enable  him  to  set  the  seal  on  his  success,  and  it  must,  therefore, 
in  common  with  every  other  recognized  means  of  war,  be  at  the 
command  of  a  legitimate  government  endeavoring  to  subdue  an 
insurrection.  As  the  army  advances  into  the  rebellious  terri- 
tory, a  hostile  may  be  replaced  by  a  loyal  magistracy,  and  a 
provisional  government  established  to  preserve  order  and  ad- 
minister justice  until  the  courts  can  be  reopened  on  the  return 
of  peace.  It  is  true  that  as  such  a  war  is  not  prosecuted  with 
a  view  to  conquest,  but  to  restore  the  normal  condition  which 
the  rebellion  interrupts,  the  right  to  employ  force  for  the  pur- 
pose indicated  might  be  thought  to  cease  with  the  suppression 
of  the  rebellion.  It  must  still,  however,  be  in  the  discretion 
of  the  legitimate  government,  if  successful,  to  determine  when 
the  war  is  at  an  end  ;  also  whether  the  insurgents  are  sincere 
in  their  submission  or  intend  to  renew  the  contest  at  the  first 
favorable  opportunity,  and  while  this  uncertainty  continues 
military  government  and  occupation  may  be  prolonged  on  the 
ground  of  necessity.2 

1.  Coleman  v.  Tennessee,  97  U.  S.,  517. 

2.  Hare's  American  Constitutional  Law,  vol.  II,  p.  949. 


34  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

As  was  remarked  by  the  Supreme  Court  of  the  United 
States  in  Horn  v.  Lockhart,1  "The  existence  of  a  state  of  in- 
surrection and  war  does  not  loosen  the  bonds  of  society  or  do 
away  with  civil  government,  or  the  regular  administration  of 
the  laws.  Order  must  be  preserved,  police  regulations  main- 
tained, crime  prosecuted,  property  protected,  contracts  enforced, 
marriages  celebrated,  estates  settled,  and  the  transfer  and  de- 
scent of  property  regulated  precisely  as  in  time  of  peace." 
These  considerations  led  to  the  recognition  as  valid  those  judi- 
cial and  legislative  acts  in  the  insurrectionary  States  touching 
the  enumerated  and  kindred  subjects,  where  they  were  not 
hostile  in  purpose  or  mode  of  enforcement  to  the  authority  of 
the  National  Government,  or  did  not  impair  contracts  entered 
into  under  the  Federal  Constitution.  This  being  true  of  insur- 
rectionary districts,  however  far  removed  from  the  scene  of 
contest,  so  much  the  more  necessary  is  it  when  armies  have 
overrun  the  country  that  some  government  be  instituted  to 
protect  life  and  property  and  preserve  society.  And  as  the 
military  power  alone  is  competent  to  do  this,  the  government 
so  established  must  of  necessity  be  military  government. 

It  is  of  little  consequence  whether  it  be  called  by  that  name. 
Its  character  is  the  same  whatever  it  may  be  called.  Its  source 
of  authority  is  the  same  in  any  case.  It  is  imposed  by  the  con- 
queror as  a  belligerent  right,  and,  in  so  far  as  the  inhabitants  of 
said  territory  or  the  rest  of  the  world  are  concerned,  the  laws 
of  war  alone  determine  the  legality  or  otherwise  of  acts  done 
under  its  authority.  But  the  conquering  State  may  of  its  own 
will,  and  independently  of  any  provisions  in  either  its  constitu- 
tion or  laws,  impose  restrictions  or  confer  privileges  upon  the 
inhabitants  of  the  rebellious  territory  so  occupied  which  are 
not  recognized  by  the  laws  of  war.  If  the  government  of  military 
occupation  disregard-  these,  it  is  accountable  to  the  dominant 
government  only  whose  agent  it  is  and  not  to  the  rest  of  the 
world. 

No  proclamation  on  the  part  of  the  victorious  commander  is 
necessary  to  the  lawful  inauguration  and  enforcement  of  mili- 
tary government.  That  government  results  from  the  fact  that 
the  former  sovereignty  is  ousted,  and  the  opposing  army  now 

I.   17  Wallace,  580. 


RIGHT    TO    ESTABLISH    MILITARY    GOVERNMENT.  35 

has  control.1  Yet  the  issuing  such  proclamation  is  useful  as 
explaining  to  all  living  in  the  district  occupied  those  rules  of 
conduct  which  will  govern  the  conqueror  in  the  exercise  of  his 
authority.  Wellington,  indeed,  as  previously  mentioned,  said 
that  the  commander  is  bound  to  lay  down  distinctly  the  rules 
according  to  which  his  will  is  to  be  carried  out.  But  the  laws 
of  war  do  not  imperatively  require  this,  and  in  very  many  in- 
stances it  is  not  done.  When  it  is  not,  the  mere  fact  that  the 
country  is  militarily  occupied  by  the  enemy  is  deemed  sufficient 
notification  to  all  concerned  that  the  regular  has  been  sup- 
planted by  a  military  government.  In  our  own  experience 
the  practice  has  widely  differed.  Neither  at  Castiue,  Maine, 
in  1 8 14,  by  the  British,  nor  at  Tampico,  Mexico,  in  1846,  or 
in  numerous  cases  during  the  Civil  War  when  territory 
was  wrested  from  the  enemy,  was  any  proclamation  issued  ; 
while  in  other  cases,  as  New  Mexico  in  1846,  California  in 
1847,  and  New  Orleans  in  1862,  proclamations  were  formally 
promulgated,  announcing  the  principles  by  which  the  country 
would  be  governed  while  subject  to  military  rule. 

These  proclamations  may  become  very  important,  because,  if 
approved  by  the  government  of  the  commanders  making  them, 
they  assume  in  equity  and  perhaps  in  law  the  scope  and  force 
of  contracts  between  that  government  and  the  people  to  whom 
they  are  addressed,  and  who  in  good  faith  accept  and  observe 
their  terms.  Thus  when  New  Orleans  was  captured  in  1862, 
the  Federal  commander,  in  his  proclamation  dated  May  1st 
and  published  May  6th,  that  year,  announced  among  other  things 
that  ' '  all  the  rights  of  property  of  whatever  kind  will  be  held 
inviolate,  subject  only  to  the  laws  of  the  United  States."  The 
Supreme  Court  afterwards  held  that  this  was  a  pledge,  binding 
the  faith  of  the  government,  and  that  no  subsequent  com- 
mander had  a  right  to  seize  private  property  within  the  district 
over  which  the  proclamation  extended  as  booty  of  war  ;  con- 
sequently, that  an  order  issued  by  a  subsequent  Federal  com- 
mander in  August,  1863,  while  the  military  occupation  contin- 
ued, requiring  the  banks  of  New  Orleans  to  pay  over  to  the 
quartermaster  all  moneys  standing  on  their  books  to  the  credit 
of  any  corporation,  association,  or  government  in  hostility  to  the 

I.  Instructions  for  Armies  in  the  Field,  G.  O.  100.,  A.  G.  O.,  1863. 


36  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

United  States,  or  person  being  an  enemy  of  the  United  States, 
was  illegal  and  void.1 

New  Mexico  was  not  only  conquered  but  remained  thereafter 
under  the  dominion  of  the  United  States.  The  provisional 
government  established  therein  ordained  laws  and  adopted  a 
judicial  system  suited  to  the  needs  of  the  country.  The 
Supreme  Court  of  the  United  States  held  that  these  laws  and 
this  system  legally  might  remain  in  force  after  the  termination 
of  the  war  and  until  modified  either  by  the  direct  legislation 
of  Congress  or  by  the  territorial  government  established  by  its 
authority.2 

I.  16  Wallace,  4S3.  2.  Leitensdorfer  v.  Webb,  20  Howard,  186. 


TEMPORARY    ALLEGIANCE    OF    INHABITANTS.  37 


CHAPTER   III. 

TEMPORARY   ALLEGIANCE    OF    INHABITANTS. 

It  has  been  observed,  and  the  observation  has  the  sanction  of 
numerous  expressions  emanating  from  the  Supreme  Court, 
that  those  who  quietly  remain  in  the  occupied  district,  trans- 
acting their  ordinary  business,  should  receive  the  care  of,  and 
they  owe  temporary  allegiance  to,  the  government  established 
over  them.1  Allegiance  is  a  duty  owing  by  citizens'  to  their 
government,  of  which,  so  long  as  they  enjoy  its  benefits,  they 
can  not  divest  themselves.  It  is  the  obligation  they  incur  for 
the  protection  afforded  them.  It  varies  with,  and  is  measured 
by,  the  character  of  that  protection.  That  allegiance  and  pro- 
tection are  obligations  binding  mutually  upon  citizens  and 
the  government  is  the  fundamental  principle  upon  which  the 
security  of  society  rests. 

Under  military  government  this  allegiance  is  said  to  be  tem- 
porary only.  It  is  not  wholly  different  in  kind,  but  in  degree 
falls  far  short  of  that  owing  by  native  born  or  naturalized  sub- 
jects to  their  permanent  government.2  A  consideration  of  the 
character  of  military  as  contradistinguished  from  regular 
governments  will  show  that  this  distinction  rests  upon  a  proper 
basis.  The  consent  of  the  people  is  the  foundation  stone  of 
governments  having  even  a  semblance  of  permanency.  This  is 
theoretically  true  at  least,  and  generally  is  so  practically.  The 
proposition  rests  on  observed  facts,  otherwise  revolution 
would  follow  revolution  and  there  could  be  no  stability  ;  but 
this  in  the  more  firmly  established  States  we  know  is  contrary 
to  experience.  Moreover,  should  the  factions,  exhausted  by 
internal  discord,  erect  at  last  a  regular  government,  it  would 
be  done  only  with  the  consent  of  the  people. 

The  Declaration  of  the  Independence  of  the  United  States 
laid  it  down  as  a  political  maxim  that  governments  derived 

i.  8  Wallace,  10;  4  Wheaton,  253;  9  Howard,  615;  see  also  Bluntschli  I, 
sees.  35,  36a,  42,  64.  2.  Blackstone  I,  pp.  37o-'i  ;  Hale,  Pleas  of  the 

Crown,  I,  p.  68  ;  Kent,  II,  p.  49. 


38  .MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

their  just  powers  from  the  governed,  and  that  it  is  the  right  of 
a  people  to  alter  or  abolish  their  form  of  government  and  insti- 
tute a  new  one,  laying  its  foundations  in  such  principles  and 
organizing  its  powers  in  such  form  as  to  them  shall  seem  most 
likely  to  effect  their  safety  and  happiness.  This  doctrine,  how- 
ever, is  no  more  applicable  in  the  United  States  than  elsewhere. 
The  history  of  the  world  illustrates  at  once  its  antiquity  and 
universality.  When  a  people  have  become  tired  of  their 
government  it  has  been  their  custom  to  change  it.  And  while 
many  governments  have  been  built  and  perpetuated  on  force 
and  fraud  perhaps,  yet  even  these  may  be  considered  as  resting 
upon  the  tacit  consent  or  acquiescence  of  the  governed.  Society 
can  not  exist  without  government,  which  is  necessary  to  preserve 
and  keep  that  society  in  order.  To  be  effective  it  must  be 
entrusted  with  supreme  authority.  This  is  necessary,  not  for 
the  gratification  of  those  who  may  be  entrusted  with  the  reins 
of  power,  but  for  the  safety  of  that  society,  for  the  protection 
and  preservation  of  which  government  is  instituted.  "And," 
says  Blackstone,  ' '  this  authority  is  placed  in  those  hands 
wherein  (according  to  the  opinions  of  the  founders  of  States, 
either  expressly  given  or  collected  from  their  tacit  approbation), 
the  qualities  requisite  for  supremacy,  wisdom,  goodness,  and 
power  are  the  most  likely  to  be  found."  J 

As  government  is  based  on  the  necessities  of  society,  afford- 
ing the  only  practicable  means  by  which  the  rights  of  its 
members  may  be  secured  and  their  wrongs  redressed,  its  forma- 
tion is  regarded  as  the  highest  privilege  and  most  important 
work  of  man.  When  formed — when,  after  the  long,  probation- 
ary, changeful  periods  which  usually  precede  the  accom- 
plished fact  governments  have  been  instituted — they  have  ever 
been  regarded  as  worthy  the  reverence,  the  homage,  and  loyal 
support  of  those  for  whose  benefit  they  were  brought  into 
existence. 

From  the  earliest  records  of  established  governments  it  has 
been  held  the  first  duty  of  those  who  received  their  protection 
to  support  and  defend  them.  Those  who  rebel  against  their 
authority  are  regarded  as  deserving  severest  punishment. 
These  are  universal  principles,  based  on  the  instincts  of  rational 

i.  Book  I,  49. 


TEMPORARY    ALLEGIANCE    OF    INHABITANTS.  39 

beings  and  the  experience  of  mankind.  Having  established 
government,  having  performed  that  supreme  act,  mankind 
have  uniformly  insisted  that,  so  long  as  it  performed  its  proper 
functions,  those  subjected  to  its  authority  and  who  enjoy  its 
benefits  are  bound  if  need  be  to  support  it  to  the  utmost  of 
their  ability.  Any  other  principle  would  sanction  revolution, 
with  its  attendant  misery,  upon  the  slightest  pretext ;  an  ex- 
perience characteristic,  not  of  States  which  have  proved  to  be 
the  blessings,  but  the  curse  of  mankind.  Considerations  like 
these,  based  on  human  nature,  and  the  demands  of  society,  have 
Unalterably  established  the  principle  that  allegiance  and  pro- 
tection are  reciprocal  duties  as  between  subject  and  government. 

In  a  modified  degree  these  principles  are  applicable  to  mili- 
tary government,  and  this  leads  to  corresponding  modifications 
of  the  allegiance  of  the  subject.  And  first,  let  it  be  observed, 
that  consent  of  the  people  freely  given,  so  far  from  being  the 
basis  on  which  military  government  is  founded,  the  very  op- 
posite is  true.  It  is  the  rule  of  force  imposed  on  subjects  by 
paramount  military  power.  That  primary  element  of  stability — 
a  confidence  grounded  in  the  mutual  interests  of  the  people  and 
their  rulers  self-imposed  for  the  benefit  of  all — is  here  wanting. 
Yet  it  is  the  modern  practice  for  the  government  of  military 
occupation  to  protect  the  people  in  their  rights  of  persons  and 
property.  When  this  is  not  done  it  is  because  the  success  of 
military  measures  render  such  a  course  unadvisable.  Here  as 
elsewhere  it  is  found  to  be  for  the  best  interests  of  all  concerned 
to  cultivate  a  feeling  of  good  will  between  rulers  and  subjects. 

By  the  English  law  it  is  high  treason  to  compass  or  imagine 
the  death  of  the  king,  his  lady  the  queen,  or  their  eldest  son 
and  heir.1  The  king  here  intended  is  the  king  in  possession, 
without  regard  to  his  title.  "For,"  says  Blackstone,  "it  is 
held  that  a  king  de  facto  and  not  de  jure,  or,  in  other  words,  a 
usurper  that  hath  got  possession  of  the  throne,  is  a  king  within 
the  meaning  of  the  statute,  as  there  is  a  temporary  allegiance 
due  to  him  for  his  administration  of  the  government  and  tem- 
porary protection  of  the  public. ' ' 2  And  so  far  was  this  principle 
carried  that,  though  Parliament  had  declared  the  line  of  Lan- 
caster to  be  usurpers,  still,  treasons  committed  against  Henry 

i.  25  Edward  III.  (y.  1352),  eh.  2.  2.  Commentaries,  IV,  p.  77. 


40  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

VI.  were  punished  under  Edward  IV.  By  a  subsequent 
statute  all  persons  who,  in  defense  of  the  king  for  the  time 
being,  wage  war  against  those  who  endeavor  to  subvert  his 
authority  by  force  of  arms,  though  the  latter  may  be  aiding  the 
lawful  monarch,  are  relieved  from  penalties  for  treason.1  This 
is  declaratory  of  the  common  law.2  Being  in  possession, 
allegiance  is  due  to  the  usurper  as  king  de  facto?  To  this 
height  has  the  duty  of  allegiance  to  de  facto  government  been 
carried  by  the  English  law.  Another  illustration,  differing  in 
its  incidents  yet  based  on  the  same  principle,  is  found  in  the 
government  of  England  under  the  commonwealth,  first,  by 
Parliament,  and  afterwards  by  Cromwell  as  protector.  It  was 
indeed  held  otherwise  by  the  judges  by  whom  Sir  Henry  Vane 
was  tried  for  treason  in  the  year  following  the  restoration. 
"But,"  as  has  been  justly  remarked,  "such  a  judgment,  in 
such  a  time,  has  little  authority." 

The  principle  here  involved,  and  which  is  equally  applicable 
to  both  regular  and  temporary  governments,  is  the  simple  one 
of  mutuality  of  allegiance  and  protection.  In  this  regard  mili- 
tary government  is  on  the  same  footing  with  any  other.  To 
the  extent  that  it  assumes  and  discharges  these  obligations  of  a 
regular  government,  it  is  entitled  to  the  obedience  of  those  who 
are  recipients  of  its  bounty.  But  as  military  government  is  at 
best  but  transient,  the  allegiance  due  to  it  is  correspondingly 
temporary.  It  becomes  complete  only  on  the  confirmation  of  the 
conquest  with  the  consent,  express  or  implied,  of  the  displaced 
government. 

Under  the  modern  rules  of  warfare  between  civilized  nations 
this  temporary  transfer  of  allegiance  carries  in  a  qualified 
manner  the  reciprocal  rights  and  duties  of  government  and 
subject  respectively.  If,  after  military  government  is  set  up 
over  them  the  people  attempt  to  leave  the  district  to  join  the 
enemy  they  will  be  repressed  with  utmost  vigor.  This  trans- 
fer of  allegiance  takes  place  only  to  the  extent  mentioned,  and 
operates  only  on  those  who  at  the  time  come  actually  under  the 
new  dominion.  Mere  paper  government  is  not  a  valid  one. 
To  be  so  it  must  be  capable  of  enforcing  its  decrees.     And  this 

I.  II  Henry  VII.,  ch.  i.  2.  4  Blackstoue,  Comm  ,  77. 

3    Thorington  v.  Smith,  8  Wallace,  8  ;  4  Blackstone,  Comm.,  78. 


TEMPORARY    ALLEGIANCE    OF    INHABITANTS.  4 1 

will  be  only  as  by  gradual  conquest  the  victor  extends  the 
supremacy  of  his  arms. 

Note  —Mr.  Hall  dissents  from  the  view  that  military  government  gives 
rise  to  the  duty  of  temporary  allegiance  on  the  part  of  the  people  over  which 
it  is  instituted.  He  maintains  that  "the  only  understanding  which  can 
fairly  be  said  to  be  recognized  on  both  sides  amounts  to  an  engagement  on 
the  part  of  the  invader  to  treat  the  inhabitants  of  occupied  territory  in  a 
milder  manner  than  is  in  strictness  authorized  bylaw,  on  the  condition  that, 
and  so  long  as,  they  obey  the  commands  which  he  imposes  under  the  guid- 
ance of  custom."  He  remarks  that  recent  writers  adopt  the  view  that  the 
acts  which  are  permitted  to  a  belligerent  in  occupied  territory  are  merely  in- 
cidents of  hostilities  ;  that  the  authority  which  he  exercises  is  a  form  of  the 
stress  which  he  puts  upon  his  enemy  ;  that  the  rights  of  the  expelled  sov- 
ereign remain  intact  ;  and  that  the  legal  relations  of  the  population  toward 
the  invader  are  unchanged.     (International  Law,  p.  429.) 

The  learned  writer  in  this  connection  calls  attention  to  the  significant 
fact  that  the  larger  powers  do  not  accede  to  this  doctrine,  though  the 
smaller  states  of  the  continent  unanimously  support  it.  No  circumstance 
could  more  effectually  impair  its  binding  efficacy.  The  large,  powerful 
states,  not  the  insignificant  ones,  determine  the  customs  of  war. 

The  exception  here  taken  to  the  theory  of  temporary  allegiance  as  in- 
dicating the  relation  of  the  inhabitants  to  military  government,  and  which 
the  language  of  numerous  judicial  decisions  justifies,  seems  to  indicate 
only  disagreement  regarding  the  correct  use  of  words  descriptive  of  that 
relation.  The  condition  is  one  of  fact.  The  conqueror,  not  the  vanquished, 
is  dictating  terms.  His  extreme  rights  under  the  customs  of  war  are  very 
severe.  That  Mr.  Hall  acknowledges.  Every  great  war  of  even  the  last 
quarter  of  a  century,  to  say  nothing  of  former  ones,  has  furnished  num- 
berless instances  of  this.  Until  recently  this  enforcement  of  extreme 
rights  was  the  rule.  Now,  as  a  condition  running  pari  passu  with  the 
abatement  on  the  part  of  the  conqueror  from  his  extreme  rights  under 
the  customs  of  war,  the  people  of  the  country  impliedly  covenant  that 
they  will  not  pursue  a  line  of  conduct  or  enter  into  military  combinations 
prejudicial  to  the  military  interest  of  the  conqueror  whose  forbearance  they 
accept.  Call  this  implied  covenant,  prayed  for  by  the  conquered  and  their 
interested  advocates.  "  temporary  allegiance,"  "mutual  engagements,"  or 
what  not,  the  name  does  not  change  the  fact. 

As  for  the  proposition  that  the  rights  of  the  deposed  sovereign  remain  in- 
tact over  people  and  territory  subjected  to  military  government,  it  can,  as 
before  pointed  out,  only  work  harm  to  such  of  them  as,  through  a  feeling 
of  loyalty,  may  be  led  to  obey  his  injunctions.  The  conqueror  of  course 
treats  such  pronunciamentos  with  contempt  and  simply  punishes  the 
spirited,  perhaps,  but  misguided  people  who  are  rash  enough  to  sacrifice 
themselves  for  a  sovereignty  which  can  only  issue  orders  without  power 
to  enforce  its  mandates,  or  save  harmless  those  who  heed  them. 

Dr.  Bluntschli  takes,  and  correctly,  the  opposite  view  from  Mr.  Hall. 
See  Laws  of  War,  I,  sees.  30,  31  ;  89  (2). 


42  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 


CHAPTER  IV. 

TERRITORIAL    EXTENT. 

Though  it  is  a  legitimate  use  of  military  power  to  secure  un- 
disturbed the  possession  of  that  which  "has  been  acquired  by 
arms, ' '  yet  it  is  difficult,  by  aid  of  any  moderate  number  of  troops, 
to  guard  and  oversee  an  extended  conquered  territory  ;  and  it  is 
practically  impossible  for  any  army  to  hold  and  occupy  all  parts  of 
it  at  the  same  moment.  Therefore,  if  the  inhabitants  are  to  be 
permitted  to  remain  in  their  domiciles  unmolested,  some  mode 
must  be  adopted  of  controlling  their  movements,  and  of  prevent- 
ing their  commission  of  acts  of  hostility  against  the  dominant 
power,  or  of  violence  against  each  other.  The  disorganization 
resulting  from  civil  war  requires,  more  than  that  following 
from  any  other,  those  restraints  which  the  dominant  military 
alone  can  impose.  In  countries  torn  by  intestine  commotions 
neighbors  become  enemies,  all  forms  of  lawless  violence  are 
but  too  apt  to  be  common,  and  in  the  absence  of  military  rule 
would  be  unrestrained.  Hence,  to  ensure  quiet  within  rebel- 
lious districts  when  reduced  into  control  during  a  civil  war,  it 
becomes  all  the  more  necessary  to  establish  there  a  rigorous 
government,  that  life  and  property  may  be  rendered  secure 
and  crime  be  either  prevented  or  promptly  punished.  Firm 
possession  of  a  conquered  province  can  be  held  only  by  establish- 
ing a  government  which  shall  control  the  inhabitants  thereof.1 
And  that  there  exists  in  the  opinion  of  the  Supreme  Court  of 
the  United  States  no  distinction  as  to  the  rights  in  this  regard 
of  the  conqueror,  whether  the  subjugated  territory  be  foreign  or 
that  of  rebels  treated  as  belligerents,  clearly  appears  from  the 
language  in  the  case  of  Tyler  v.  Defrees.  ' '  We  do  not  believe, ' ' 
said  the  court  in  that  cas*e,  ' '  that  the  Congress  of  the  United 
States,  to  which  is  confided  all  the  great  powers  essential  to 
a  perpetual  union,  the  power  to  make  war,  to  suppress  insur- 
rection, to  levy  taxes,  to  make  rules  concerning  captures  on 

i.  Whiting,  p.  262. 


TERRITORIAL    EXTENT.  43 

land  and  sea,  is  deprived  of  these  powers  when  the  necessity 
for  their  exercise  is  called  out  by  domestic  insurrection  and 
internal  civil  war  ;  when  States,  forgetting  their  constitutional 
obligations,  make  war  against  the  nation,  and  confederate 
together  for  its  destruction."  ] 

The  question,  what  legally,  under  the  customs  of  war,  shall 
constitute  ' '  military  occupation  ' '  was  one  of  the  important 
matters  which  the  conference  at  Brussels  in  1874  tried  but  failed 
to  decide. 

The  conference  concluded  that  "a  territory  is  considered  as 
occupied  when  it  finds  itself  placed  in  fact  under  the  authority 
of  the  hostile  army.  The  occupation  extends  only  to  territory 
where  this  authority  is  established  and  in  condition  to  be  exer- 
cised." The  German  view  of  occupation  was  that  it  did  not 
always  manifest  itself  by  exterior  signs,  like  a  place  blockaded; 
that,  for  instance,  a  town  in  the  conquered  district  left  without 
troops  ought  nevertheless  to  be  considered  as  occupied,  and  all 
risings  there  should  be  severely  repressed. 

The  English  took  a  different  view  of  the  subject — that  gov- 
ernment holding,  in  brief,  that,  to  be  militarily  occupied  a  terri- 
tory should  be  held  firmly  in  the  conqueror's  grasp,  and  that  if 
he  did  not  keep  a  military  force  at  any  particular  point,  the  people 
living  there  were  under  no  obligations  to  remain  quiet,  but  prop- 
erly might  rise  against  the  occupying  power  without  incurring 
the  penalties  meted  out  to  insurgents. 

It  is  plain  that  the  latter  (English)  view  would  favor  risings 
of  the  people  en  masse  to  strike  at  the  occupying  power  ;  a  right 
for  which  that  government  strenuously  contends.  It  is  natur- 
ally the  contention  of  a  power  having  a  comparatively  small 
standing  army,  and  whose  policy  it  is  to  encourage  so-called 
patriotic  risings  of  the  people,  to  make  headway  against  the 
invader.  The  German  view,  on  the  contrary,  is  favorable  to 
the  government  with  a  large  regular  army.  According  to  this 
idea  of  "military  occupation,"  risings  of  the  people  are  pro- 
scribed even  if  no  enemy  be  present  to  keep  them  in  subjection, 
the  army  having  just  passed  through  on  its  career  of  conquest. 
The  foundation  for  this  theory  maintained  by  such  a  people  is 
not  difficult  to  understand:  if  the  enemy  have  but  a  small  regu- 

1.  11  Wallace,  331,  345. 


44  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

lar  force,  and  it  can  be  made  outlawry  for  the  people  to  rise 
against  the  authority  of  even  an  absent  foe,  that  enemy  will  not 
contend  long  against  a  large  standing  army  which  not  only  fights 
its  antagonist  in  front  but  constriictively  controls  enemy  territory 
that  it  has  only  traversed.  This  is  a  constructive  occupation 
something  like  the  constructive  blockades  of  the  beginning  of 
the  century. 

The  truth  must  be  that  a  territory  is  militarily  occupied  when 
the  invader  dominates  it  to  the  exclusion  of  the  former  and 
regular  government.     The  true  test  is  exclusive  possession.1 

A  determination  of  the  time  when  military  government  be- 
comes operative  is  important.2  As  the  military  dominion  rests 
on  force  alone,  it  will  receive  recognition  only  from  the  time 
when,  the  original  governmental  authorities  having  been 
expelled,  the  commander  of  the  occupying  army  is  able  to 
cause  his  authority  to  be  respected.  No  presumptions  exist  in 
favor  of  a  change  from  old  to  new  government.  Whatever 
rights  are  claimed  for  the  latter  must  be  clearly  shown  to  belong 
to  it. 

When  New  Orleans  was  captured  in  1862,  the  Federal  gen- 
eral issued  a  proclamation  announcing  the  fact  of  occupation, 
and  setting  forth  the  administrative  principles  which  would 
regulate  the  United  States  authorities  in  governing  the  district 
occupied  and  the  rules  of  conduct  to  be  observed  by  the  people. 
The  Supreme  Court  of  the  United  States,  referring  to  this,  said: 
"We  think  the  military  occupation  of  the  city  of  New  Orleans 
may  be  considered  as  substantially  complete  from  the  date  of 
this  publication  ;  and  that  all  the  rights  and  obligations  result- 
ing from  such  occupation,  or  from  the  terms  of  the  proclama- 
tion, may  be  properly  regarded  as  existing  from  that  time. ' ' 3 
Firm  possession  of  enemy's  country  in  war  suspends  his  power 
and  right  to  exercise  sovereignty  over  the  occupied  place,  and 
gives  those  rights,  temporarily  at  least,  to  the  conqueror;  rights 
which  all  nations  recognize  and  to  which  all  loyal  citizens  may 
submit.4 

Acts  of  Congress  take  effect  from  date  of  signature  unless 
there  be  something  in  their  terms  to  modify  the  rule.     In  con- 

1.   Woolsey,  section  142  ;  Maine,  p.  178;  Manual,  p.  314.  2.  Ameri. 

can  Instructions,  section  1,  clause  1.  3.   The  Venice,  2  Wallace,  276. 

4.  Dana's  Wheaton,  sec.  337,  note  162  ;  Manning,  pp.  182-3. 


TERRITORIAL   EXTENT.  45 

templation  of  law  those  are  the  dates  of  promulgation  to  persons 
interested,  and  rights  accruing  under  them  vest  accordingly. 
The  general  rule  is  that  retroactive  construction  is  never  fa- 
vored.1 The  same  principles  apply  when  a  conqueror  announces 
by  proclamation  his  assumption  of  the  reins  of  government  ; 
observing  that,  if  the  dates  of  signing  and  promulgation  differ, 
the  latter  governs.  And  this  is  reasonable  because,  as  this 
announcement  on  the  part  of  the  conqueror  under  the  strict 
laws  of  war  is  unnecessary — the  mere  fact  of  occupation  serving 
on  the  people  sufficient  notice  that  the  will  of  the  conqueror  is 
for  the  time  their  law 2— a  proclamation  setting  forth  in  terms 
what  that  will  is  gives  rise  to  mutual  rights  and  obligations  as 
between  the  conqueror  and  the  conquered  ;  and  therefore  the 
date  of  promulgation  which  makes  that  will  known  is  properly 
taken  as  the  point  of  time  from  which  rights  vest  and  obliga- 
tions are  incurred. 

"The  port  of  Tampico,"  said  the  Supreme  Court  of  the 
United  States  in  Fleming  v.  Page,  referring  to  the  establish- 
ment of  military  government  in  Mexico,  "and  the  Mexican 
State  of  Tamaulipas,  in  which  it  is  situated,  were  subject  to 
the  sovereignty  and  dominion  of  the  United  States.  The 
Mexican  authorities  had  been  driven  out,  or  had  submitted  to 
our  army  and  navy,  and  the  country  was  in  the  firm  and 
exclusive  possession  of  the  United  States  and  governed  by  its 
military  authorities,  acting  under  the  orders  of  the  President." 
The  criterion  of  conquest  here  announced  is  the  driving  out 
enemy  authorities,  or  their  submission  to  the  dominant  power. 
It  is  a  proper  test  and  must  receive  a  reasonable  construction. 
Its  meaning  is  that  from  the  instant  the  authorities  surrender  to 
the  invader  the  duty  of  protecting  the  people  in  their  rights  of 
persons  and  property,  the  allegiance  of  the  latter  is  temporarily 
transferred  from  their  former  to  their  new  rulers. 

The  territorial  extent  of  military  government  can  not  be 
greater  than  that  of  conquest,  and  generally  will  be  coincident 
with  it.  Its  basis  being  overpowering  force,  its  ability  to  ex- 
ercise that  force  and  the  extent  to  which  that  ability  is  recog- 
nized by  the  people  of  the  district  occupied,   determine    the 

i.  Sedgwick,  Construction  of  Statutory  and  Constitutional  Law,  p.  164 
2.  U.  S.  Instructions  for  Armies  in  the  Field,  sec.  i,  clause  1. 


46  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

limits  of  its  authority.1  The  conqueror  can  not  demand  that 
temporary  transfer  of  allegiance  which  is  one  feature  of  military 
government,  unless,  in  return  therefor,  he  can  and  does  protect 
the  people  throughout  the  occupied  district  in  those  rights  of 
person  and  property  which  it  is  binding  on  government  to  secure 
to  them. 

Unless  confirmed  by  treaty  such  acquisitions  are  not  consid- 
ered permanent.  Yet  for  every  commercial  and  belligerent 
purpose  they  are  considered  as  part  of  the  domain  of  the  con- 
queror so  long  as  he  retains  the  possession  and  government.2 

The  fifth  section  of  the  Act  of  July  13,  1861,3  for  the  collec- 
tion of  duties  and  other  purposes,  looking  to  the  suppression  of 
the  then  existing  rebellion,  provided  that,  under  certain  condi- 
tions, the  President,  by  proclamation,  might  declare  the  inhabi- 
tants of  a  State  or  any  section  or  part  thereof  to  be  in  a  state  of 
insurrection  against  the  United  States.  In  pursuance  of  this  act 
the  President,  on  the  16th  of  August  following,  issued  a  procla- 
mation declaring  the  inhabitants  of  certain  States,  excepting 
designated  districts,  as  well  as  those  ' '  from  time  to  time  occu- 
pied and  controlled  by  forces  of  the  United  States  engaged  in 
dispersing  the  insurgents,"  to  be  in  a  condition  of  rebellion. 
Referring  to  these  measures  the  Supreme  Court  of  the  United 
States  said:  "This  legislative  and  executive  action  related, 
indeed,  mainly  to  trade  and  intercourse  between  the  inhabitants 
of  loyal  and  the  inhabitants  of  insurgent  parts  of  the  country  ; 
but,  by  excepting  districts  occupied  and  controlled  by  national 
troops  from  the  general  prohibition  of  trade,  it  indicated  the 
policy  of  the  government  not  to  regard  such  districts  as  in 
actual  insurrection,  or  their  inhabitants  as  subject,  in  most 
respects,  to  treatment  as  enemies.  Military  occupation  and 
control,  to  work  this  exception,  must  be  actual ;  that  is  to  say, 
not  illusory,  not  imperfect,  not  transient ;  but  substantial, 
complete,  and  permanent.  Being  such  it  draws  after  it  the 
full  measure  of  protection  to  persons  and  property  consistent 
with  a  necessary  subjection  to  military  government.  It  does 
not,  indeed,  restore  peace,  or  in  all  respects,  former  relations  ; 
but  it  replaces  rebel  by  national  authority,  and  recognizes,  to 

1.  Maine,  p   178.  2.  9  Cranch,  195  ;  Amer.  Ins.  Co.  v.  Canter,  1 

Peters,  542.  3.  12  Statutes  at  Large,  257. 


TERRITORIAL    EXTENT.  47 

some  extent,  the  conditions  and  responsibilities  of  national 
citizenship."1 

The  case  here  considered  was  one  of  government  dealing  with 
rebellious  subjects  ;  but  it  clearly  sets  forth  the  general  princi- 
ples of  military  government,  under  the  rules  of  modern  war, 
when  control  has  become  substantial,  complete,  if  not  perma- 
nent. The  inhabitants  pass  under  the  government  of  the  con- 
queror, and  are  bound  by  such  laws,  and  such  only,  as  it  chooses 
to  recognize  and  impose.2 

In  this  connection  the  remarks  of  Chancellor  Kent  when 
treating  of  the  obligations  arising  out  of  blockades  are  interest- 
ing :  "  A  blockade  must  be  existing  in  point  of  fact;  and  in 
order  to  constitute  that  existence,  there  must  be  a  power  present 
to  enforce  it.  All  decrees  and  orders  declaring  extensive  coasts 
and  whole  countries  in  a  state  of  blockade,  without  the  presence 
of  an  adequate  naval  force  to  support  it,  are  manifestly  illegal 
and  void,  and  have  no  sanction  in  public  law."  3  These 
remarks  are  equally  applicable  to  military  occupation  of  enemy 
country.  To  extend  the  rights  of  such  occupation  by  mere 
intention,  implication,  or  proclamation,  without  the  military 
power  to  enforce  it,  would  be  establishing  a  paper  conquest 
infinitely  more  objectionable  in  its  character  and  effects  than  a 
paper  blockade.4  The  occupation,  however,  of  part  by  right  of 
conquest  with  intent  and  power  to  appropriate  the  whole,  gives 
possession  of  the  whole,  if  the  enemy  maintain  military  pos- 
session of  no  portion  of  the  residue.  But  if  any  part  hold  out, 
so  much  only  is  possessed  as  is  actually  conquered.  Forcible 
possession  extends  only  so  far  as  there  is  an  absence  of  resist- 
ance. 

It  must  not  be  inferred  from  what  has  just  been  said  that  the 
conqueror  can  have  no  control  or  government  of  hostile  territory 
unless  he  actually  occupies  it  with  an  armed  force.  It  is  deemed 
sufficient  if  it  submits  to  him  and  recognizes  his  authority  as 
conqueror  ;  for  conquests  are,  indeed,  in  this  way  extended  over 
the  territory  of  an  eneuty  without  actual  occupation  b}-  an  armed 
force.  But  so  much  of  such  territory  as  refuses  to  submit  or  to 
recognize  the  authority  of  the  conqueror,  and  is  not  forcibly 

i.  2  Wallace,  277.  2.  U.  S.  v.  Rice,  4  Wheaton,  253. 

3.  Vol.  i,  p.  144.  4.  Manual,  p.  314. 


4>S  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

occupied  by  him,  can  not  be  regarded  as  under  his  control  or 
within  the  limits  of  his  conquest ;  and  he  therefore  can  not  pre- 
tend to  govern  it  or  to  claim  the  temporary  allegiance  of  its 
inhabitants,  or  in  any  way  to  divert  or  restrict  its  intercourse 
with  neutrals.  It  remains  as  the  territory  of  its  former  sov- 
ereign, hostile  to  the  would-be  conqueror  as  a  belligerent  and 
friendly  to  others  as  neutrals.  The  government  of  the  conqueror 
being  de  facto  and  not  de  jure  in  character,1  it  must  always  rest 
upon  the  fact  of  possession,  which  is  adverse  to  the  former  sov- 
ereign, and  therefore  can  never  be  inferred  or  presumed.  Not 
only  must  the  possession  be  actually  acquired,  but  it  must  be 
maintained.  The  moment  possession  is  lost  the  rights  of  mili- 
tary occupation  are  also  lost.  By  the  laws  and  usages  of  nations 
conquest  is  a  valid  title  only  while  the  victor  maintains  the 
exclusive  possession  of  the  conquered  country.2 

The  fundamental  rule  that  to  render  military  government 
legal  there  must  be  an  armed  force  in  the  territory  occupied 
capable  of  enforcing  its  ' '  adverse  possession ' '  against  all  dis- 
putants seems  to  be  stricter  even  than  the  corresponding  rule 
with  reference  to  blockade,  concerning  which  it  is  held  that  a 
temporary  absence  of  the  squadron  under  certain  circumstances 
will  not  impair  its  validity.  "The  occasional  absence  of  the 
blockading  squadron  produced  by  accident,  as  in  the  case  of  a 
storm,  and  when  the  station  is  resumed  with  due  diligence, 
does  not  suspend  the  blockade,  provided  the  suspension  and 
the  reason  of  it  be  known  ;  and  the  law  considers  an  attempt  to 
take  advantage  of  such  an  accidental  removal  as  an  attempt  to 
break  the  blockade,  and  a  mere  fraud."  3 

While  military  government  can  legally  extend  so  far  only  as 
the  enemy  actually  or  impliedly  surrenders  control  of  the  coun- 
try, it  is  sufficient  to  that  legality  that  there  has  been  in  fact 
such  abandonment  of  jurisdiction  by  the  expelled  State,  and  an 
assumption  of  authority  by  the  conqueror.  If  considerations  of 
policy  intervene  he  or  his  government  determines  upon  them. 
To  render  military  government  effective  the  occupation  must, 
indeed,  be  substantial  and  complete,  but  it  need  not  be  perma- 

i.  8  Wallace,  10.  2.  Halleck,  cb.  32,  sec.  3  ;  9  Howard,  615. 

3.  Kent,  vol.  i,  p.  145. 


TERRITORIAL    EXTENT.  49 

nent.  In  the  exigencies  of  war  the  latter  could  not  be  a  condi- 
tion precedent  to  its  legality,  because  the  deposed  authorities 
might  regain  the  territory  lost  by  force  of  arms. 

After  Memphis,  Tennessee,  with  the  adjacent  country,  was 
occupied  by  the  Union  Army,  who  expelled  therefrom  the  rebel 
forces,  the  lessees  of  absent  citizens  were  compelled  to  turn  their 
rents  into  the  military  chest  of  their  new  rulers.  The  Supreme 
Court  of  the  United  States  held  this  to  be  a  proper  exercise  of 
the  right  of  war,  and  refused  to  hold  them  liable  to  their  lessors 
for  moneys  thus  paid  to  the  agents  of  the  de  facto  government. 
The  general  commanding  the  Union  forces  at  Memphis  was 
charged  with  the  duty  of  suppressing  rebellion  by  all  the  means 
which  the  usages  of  modern  warfare  permitted.  To  that  end 
he  represented  for  the  time,  and  in  that  locality,  the  military 
power  of  the  nation.  The  rents  were  seized  flagrante  bello  in 
that  portion  of  the  territory  of  the  United  States  the  inhabitants 
whereof  had  been  declared  to  be  in  insurrection.  There  was  no 
such  "substantial,  complete,  and  permanent  military  occupation 
and  control ' '  as  has  been  sometimes  held  to  draw  after  it  a  full 
measure  of  protection  to  persons  and  property  at  the  place  of 
military  operations.  No  pledge  had  there  been  given  by  the 
constituted  authorities  of  the  government  which  prevented  the 
commander  of  the  Union  forces  from  doing  all  that  the  laws  of 
war  authorized,  and  that,  in  his  judgment,  under  the  circum- 
stances attending  his  situation,  was  necessary  or  conducive  to  a 
successful  prosecution  of  the  war.1  And  although,  in  fact,  the 
occupation  of  the  district  in  question  by  the  Union  forces  was 
not  only  complete  and  substantial,  but  proved  to  be  permanent 
also,  it  is  evident  that  such  need  not  have  been  the  case  to  legal- 
ize all  administrative  measures  of  their  commander  consistent 
with  modern  laws  of  war. 

1.  Gates  v.  Goodloe,  lot  U.  S.,  pp.  617,  618;  Planters  Bank  v.  Union 
Bank,  16  Wallace,  495. 


50  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 


CHAPTER    V. 

TERRITORY    MILITARILY    OCCUPIED,   ENEMY   TERRITORY. 

Military  occupation  does  not  add  permanently  to  the  public 
domain;  nor  does  temporary  occupancy  of  our  own  by  enemy 
forces  diminish  it.  If  a  nation  be  not  entirely  subdued  it  is  the 
usage  of  the  world  to  consider  the  holding  of  conquered  terri- 
tory as  a  mere  military  occupation  until  its  fate  is  determined 
by  a  treaty  of  peace.1 

It  is  true  that  ulterior  objects  may  cause  this  rule  to  be  dis- 
regarded. As,  for  instance,  in  the  invasion  of  New  Mexico 
and  California  in  1846-7.  Here,  acting  under  instructions, 
the  military  commanders  immediately  upon  occupation  issued 
proclamations  annexing  those  territories  to  the  United  States 
and  absolving  the  people  from  their  allegiance  to  the  Mexican 
Government.  In  New  Mexico,  at  least,  the  election  of  delegate 
to  Congress  was  authorized. 

The  same  rule  was  observed  by  the  Germans  in  Alsace  and 
Lorraine  in  i870-'7i.  The  permanent  annexation  of  these 
provinces  had  been  determined  upon.  Every  movement  of  the 
occupying  power  was  directed  to  the  consummation  of  that 
purpose.  The  military  government  as  to  them  differed  from  that 
established  elsewhere  in  France  principally,  1,  in  the  deter- 
mined suppression  of  the  elements  by  which  the  transfer  from 
one  country  to  the  other  was  opposed  ;  2,  in  encouraging  and 
strengthening  the  elements  favorable  to  the  change  ;  3,  in  gain- 
ing over  the  hesitating  and  neutral  elements  by  promoting  and 
by  showing  consideration  for  their  interests.2 

While,  under  a  limited  monarchy  such  as  the  kingdom  of 
Great  Britain,  the  exercise  of  authority  by  military  command- 
ers, as  in  New  Mexico  and  California,  might,  to  a  great  extent, 
have  had  the  sanction  of  usage,  this  could  not  be  the  case  under 
the  government  of  this  Union.  The  latter  possesses,  it  is  true, 
authority  to  acquire  territory,  the  Constitution  conferring  upon 

1.  Amer.  Ins.  Co.  v.  Canter,  1  Peters,  542. 

2.  Bluntschli,  I,  sec.  36a. 


TERRITORY    MILITARILY    OCCUPIED,    ENEMY    TERRITORY.     5 1 

it  absolutely  the  powers  of  making  war  and  treaties.1  But  the 
exercise  of  the  territory-acquiring  authority  rests  with  those 
departments  of  ihe  Government  in  which  these  powers  are 
vested.  The  Executive,  acting  alone,  can  neither  add  to  nor 
take  from  the  territory  of  the  United  States.  The  action  of  the 
military  commanders,  therefore,  in  New  Mexico  and  Upper 
California,  in  so  far  as  they  assumed  to  annex  those  territories, 
permanently  to  transfer  the  allegiance  of  the  people  from  the 
Republic  of  Mexico  to  the  United  States  and  give  them  repre- 
sentation in  the  national  Congress,  was  beyond  their  powers 
and  void,  although  done  in  pursuance  of  the  instructions  of  the 
Secretary  of  War. 

General  Scott  understood  this  matter  better.  In  his  instruc- 
tions to  General  Kearney  of  November  3,  1846,  he  said  :  "  You 
will  erect  and  garrison  durable  defences  for  holding  the  bays 
of  Monterey  and  San  Francisco,  together  with  such  other  im- 
portant points  in  the  same  provinces  as  you  may  deem  it  neces- 
sary to  occupy.  You  will  not,  however,  formally  declare  the 
province  to  be  annexed.  Permanent  incorporation  of  the  terri- 
tory must  depend  on  the  Government  of  the  United  States. ' ' 

Decisions  of  the  Supreme  Federal  Tribunal  set  at  rest  all 
doubts  on  this  subject.  During  the  war  of  1812,  a  British  ship, 
sailing  from  the  Danish  Island  of  Santa  Crux,  was  captured  by 
an  American  privateer,  freighted  with  certain  products  of  the 
island.  The  owner  of  the  plantation  on  which  the  produce 
[sugar]  was  raised,  was  a  Danish  official  who  withdrew  to  and 
remained  in  Denmark  when  the  island  surrendered  to  the 
British,  leaving  his  estate  under  the  management  of  an  agent. 
The  vessel  and  cargo  were  duly  condemned  as  enemy  property. 

A  claim  for  the  sugar  was  put  in  by  the  Danish  owner,  but 
it  was  condemned  with  the  rest  of  the  cargo,  and  the  sentence 
confirmed,  upon  appeal,  by  the  Supreme  Court  of  the  United 
States.  It  was  remarked  that  the  island  of  Santa  Crux,  after 
its  capitulation,  remained  a  British  island  until  it  was  restored 
to  Denmark  ;  that  acquisitions  made  during  war  are  not  con- 
sidered permanent  until  confirmed  by  treaty,  yet  to  every 
commercial  and  belligerent  purpose,  they  are  considered  as 
part  of  the  domain  of  the  conqueror,  so  long  as  he  retains  the 

1.  Hall,  pp.  466-' 7  ;  see  also  Shauks  v.  Du  Pont,  3  Peters,  246. 


52  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

possession  and  government  of  them  ;  that  although  incor- 
porated, so  far  as  respects  his  general  character,  with  the  per- 
manent interests  of  Denmark,  the  owner  was  incorporated,  so 
far  as  respected  his  plantation  in  Santa  Crux,  with  the  perma- 
nent interests  of  Santa  Crux,  which  was  at  that  time  British  ; 
and  though,  as  a  Dane,  he  was  at  war  with  Great  Britain  and 
an  enemy,  yet  as  a  proprietor  of  land  in  Santa  Crux  he  was 
no  enemy  ;  he  could  ship  his  produce  to  Great  Britain  in  per- 
fect safety.1 

During  the  period  of  their  occupation  of  Castine,  Maine,  the 
British  government  exercised  all  civil  and  military  authority 
over  the  place  ;  established  a  custom-house,  and  admitted  im- 
ported goods  under  regulations  prescribed  by  itself.  Certain 
of  these  goods,  so  imported,  remained  at  Castine  after  the  enemy 
retired.  The  attempt  of  the  United  States  collector  of  customs 
to  collect  duties  thereon  was  resisted  upon  the  ground  that 
duties  were  not  due.  The  question  being  taken  to  the  Supreme 
Court  of  the  United  States  was  decided  adversely  to  the  gov- 
ernment. The  court  observed  that,  under  these  circumstances, 
the  claim  for  duties  could  not  be  sustained.  By  the  conquest 
and  military  occupation  of  Castine,  the  enemy  acquired  that 
firm  possession  which  enabled  him  to  exercise  there  the  fullest 
rights  of  sovereignty.  The  inhabitants  passed  under  a  tem- 
porary allegiance  to  the  British  government,  and  were  bound 
by  such  laws,  and  such  only,  as  it  chose  to  recognize  and 
impose.  From  the  nature  of  the  case  no  other  laws  could  be 
obligatory  upon  them,  for  where  there  is  no  protection  or 
allegiance  or  sovereignty  there  can  be  no  claim  to  obedience.2 

The  case  of  Fleming  v.  Page  illustrates  the  same  principles. 
The  Supreme  Court  there  held  that  military  occupation  did  not 
make  occupied  districts  a  part  of  our  territory  under  our  Con- 
stitution and  laws.  The  United  States  may  extend  its  bound- 
aries by  conquest  or  treaty  and  may  demand  the  cession  of  ter- 
ritory as  the  condition  of  peace.  But  this  can  be  done  only  by 
the  treaty-making  power  or  the  legislative  authority,  and  is  not 
a  part  of  the  power  conferred  upon  the  President  by  the  decla- 
ration of  war.  His  duty  and  his  power  are  purely  military. 
As  commander-in-chief  he  is  authorized  to  direct  the  move- 

I.  Thirty  Hogsheads  of  Sugar  v.  Boyle,  9  Cranch,  191.         2.  United  States 
V.  Rice,  4  Wheaton,  254  ;  see  also  Shanks  v.  Du  Pont,  Peters,  3,  p.  246. 


TERRITORY   MILITARILY   OCCUPIED,    ENEMY   TERRITORY.     53 

ments  of  the  naval  and  military  forces  placed  by  law  at  his 
command,  and  to  employ  them  in  the  manner  he  may  deem  most 
effectual  to  harass  and  conquer  and  subdue  the  enemy.  He  may 
invade  the  hostile  country,  and  subject  it  to  the  sovereignty  and 
authority  of  the  United  States.  But  his  conquests  do  not  en- 
large the  boundaries  of  this  Union,  nor  extend  the  operation  of 
our  institutions  and  laws  beyond  the  limits  before  assigned 
them  by  the  legislative  power.  It  is  true  that  when  Tampico 
had  been  captured  and  the  state  of  Tamaulipas  subjugated, 
other  nations  were  bound  to  regard  the  country,  while  our  pos- 
session continued,  as  the  territory  of  the  United  States  and  to  re- 
spect it  as  such.  For,  by  the  laws  and  usages  of  nations,  con- 
quest is  a  valid  title  while  the  victor  maintains  exclusive  pos- 
session of  the  conquered  country.  But  yet  it  was  not  a  part  of 
the  Union.  For  every  nation  which  acquires  territory  by  treaty 
or  conquest  holds  it  according  to  its  own  institutions  and  laws. 
The  relation  in  which  it  stands  to  the  United  States  depends 
not  upon  the  law  of  nations,  but  upon  our  own  constitution  and 
acts  of  Congress.  The  boundaries  of  the  United  States,  as  they 
existed  before  the  war  was  declared,  were  not  extended  by  the 
conquest,  nor  could  they  be  regulated  by  the  varying  incidents 
of  war  and  be  enlarged  or  diminished  as  the  armies  on  either 
side  advanced  or  retreated.  They  remained  unchanged.  And 
every  place  which  was  out  of  the  limits  of  the  United  States, 
as  previously  established  by  the  political  authorities  of  the  gov- 
ernment, was  still  foreign  ;  nor  did  our  laws  extend  over  it.1 
And  in  Cross  v.  Harrison  the  court  observed  that  although 
Upper  California  was  occupied  by  the  military  forces  in  1846, 
and  a  government  erected  therein  by  authority  of  the  Presi- 
dent, still  it  was  not  a  part  of  the  United  States,  but  conquered 
territory  within  which  belligerent  rights  were  being  exercised  ; 
nor  did  it  become  part  of  the  United  States  until  the  ratifica- 
tion of  the  treaty  of  peace,  May  30th,  1848." 

Districts  occupied  by  rebels  treated  as  belligerents  are,  in 
contemplation  of  law,  foreign.  The  same  principles  govern 
intercourse  therewith  during  military  occupation  as  though 
they  belonged  to  an  independent  belligerent.  They  are  enemy's 
territory  because   they  are  held  by   a  hostile  military    force. 

1.  9  Howard,  615-16.  2.  16  Howard,  i9i-'2. 


54  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

And  in  determining  whether  belligerent  rights  shall  be  con- 
ceded to  rebels,  with  all  attendant  consequences,  it  has  been 
decided  that  whether  the  President,  in  fulfilling  his  duties  as 
commander-in-chief  in  suppressing  an  insurrection,  has  met 
with  such  armed  hostile  resistance  and  a  civil  war  of  such 
alarming  proportions  as  will  compel  him  to  accord  to  them  the 
character  of  belligerents,  is  a  question  to  be  decided  by  him, 
and  that  the  judicial  must  be  governed  by  the  decision  and 
acts  of  the  political  department  of  the  government  to  which 
this  power  is  entrusted.  He  must  determine  what  degree  of 
force  the  crisis  demands.1  When  parties  in  rebellion  occupy 
and  hold  in  a  hostile  manner  a  portion  of  the  territory  of  the 
country,  declare  their  independence,  cast  off  their  allegiance, 
organize  armies,  and  commence  hostilities  against  the  govern- 
ment, war  exists.  The  President  is  bound  to  recognize  the 
fact,  and  meet  it  without  waiting  for  the  action  of  Congress,  to 
which  is  given  the  constitutional  power  to  declare  war.  Under 
his  authority  as  commander-in-chief,  and  his  constitutional 
obligations  to  see  that  the  laws  are  faithfully  executed,  he  takes 
the  necessary  measures  to  meet  the  emergency  and  crush  the 
rebellion.  If  rebels  dominate  a  district  bounded  by  a  line  of 
bayonets  to  be  crossed  only  by  force,  and  the  President  has 
conceded  to  them,  in  their  military  capacity,  belligerent  rights, 
all  the  territory  so  dominated  must  be  considered  enemy's 
territory  and  the  inhabitants  as  enemies." 

When  a  rebellion  has  assumed  the  character  of  civil  war  it 
is  attended  by  the  general  incidents  of  regular  warfare.  The 
general  usage  of  nations  regards  such  a  war  as  entitling  both 
the  contending  parties  to  all  the  rights  of  war  as  against  each 
other,  and  even  as  respects  neutral  nations.3  The  United  States 
acted  in  accordance  with  this  doctrine  toward  the  contending 
parties  in  the  civil  war  in  South  America.  The  Supreme  Court 
in  the  case  of  The  Sa?itissima  Trinidad,  said:  "The  government 
of  the  United  States  has  recognized  the  existence  of  civil  war 
between  Spain  and  her  colonies,  and  has  avowed  a  determination 
to  remain  neutral  between  the  parties  and  to  allow  to  each  the 
same  rights  of  asylum,  hospitality,  and  intercourse.  Each 
party  is  deemed  by  us  a  belligerent  nation,  having,  so  far  as 

i.  Prize  Cases,  2  Black's  Reports,  270.         2.  Williams  v.  Bruffy,  96  U.  S., 
iSg-'QO.  3.  Dana's  Wheaton,  sec.  296  aud  note. 


TERRITORY    MILITARILY    OCCUPIED,    ENEMY   TERRITORY.     55 

concerns  us,  the  sovereign  rights  of  war,  and  entitled  to  be 
respected  in  the  exercise  of  those  rights. ' '  ' 

Vattel  points  out  that  in  a  civil  war  the  contending  parties 
have  a  right  to  claim  the  enforcement  of  the  same  rules  which 
govern  the  conduct  of  armies  in  wars  between  independent 
nations — rules  intended  to  mitigate  the  cruelties  which  would 
attend  mutual  reprisal  and  retaliation.2  To  the  same  effect  was 
the  language  of  the  Supreme  Court  of  the  United  States  in 
Coleman  v.  Tennessee.  The  court  remarked  that  the  doctrine 
of  international  law  as  to  the  effect  of  military  occupation  of 
enemy's  territory  upon  former  laws  is  well  understood  ;  that 
though  the  late  war  [Rebellion  of  186 1-5]  was  not  between  in- 
dependent nations,  but  between  different  portions  of  the  same 
nation,  yet  having  taken  the  proportions  of  a  territorial  war, 
the  insurgents  having  become  formidable  enough  to  be  recog- 
nized as  belligerents,  the  same  doctrine  must  be  held  to  apply. 
The  right  to  govern  the  territory  of  the  enemy  during  its  mili- 
tary occupation  is  one  of  the  incidents  of  war,  being  a  conse- 
quence of  its  acquisition  ;  and  the  character  and  form  of  the 
government  to  be  established  depend  entirely  upon  the  laws  of 
the  conquering  state  or  the  orders  of  its  military  commanders. 3 

The  course  pursued  by  the  national  government  during  the 
civil  war  accorded  with  these  principles.  The  government  oc- 
cupied, it  is  true,  a  peculiar  position.  It  was  both  belligerent 
and  constitutional  sovereign.  For  the  enforcement  of  its  con- 
stitutional rights  against  armed  insurrection  it  had  all  the 
power  of  the  most  favored  belligerent.*  From  time  to  time  the 
military  lines  of  the  enemy  were  forced  back  ;  and,  as  they 
receded,  the  hostile  territory  was  entered  upon  by  the  forces  of 
the  United  States.  It  was  thus  taken  out  of  hostile  possession. 
But,  until  the  power  of  the  rebellion  was  broken,  its  armies 
captured  or  dispersed,  and  national  supremacy  rendered  every- 
where complete,  States  and  districts  whose  inhabitants  had 
been  declared  to  be  in  a  state  of  insurrection  were  deemed  to 
be  and  treated  as  foreign  territory,  to  be  conquered  and  gov- 
erned according  to  the  laws  of  war,  except  as  modified  by  acts 
of  Congress.     These  acts  were  an  exercise  of  the  war  power  of 

1.  7  Wheaton,  337.  2.   Law  of  Nations,  p.  425. 

3.  97  U.  S.,  p.  517.  4.  Lamar  v.  Browne,  92  U.  S.,  195. 


56  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

the  government.  They  were  partly  directed  to  the  regulations 
of  military  government  over  conquered  provinces,  and  partly 
to  the  sovereign  right  of  recalling  revolted  subjects  to  their  al- 
legiance. All  intercourse  with  the  revolted  territory  was  inter- 
dicted or  conducted  only  under  the  laws  of  war,  as  modified  by 
statutes  enacted  pursuant  to  the  same  policy.1 

Whether,  therefore,  war  be  waged  against  a  foreign  foe,  or 
a  domestic  foe  treated  as  a  belligerent,  territory  subjugated  by 
him  or  which  he  dominates  is  enemy  territory  in  its  relation  to 
the  invader. 

The  British  rule  as  to  the  effect  of  conquest  is  different.  No 
war  of  conquest  and  annexation  ever  prosecuted  by  that  power 
was  more  deliberately  planned  or  successfully  executed  than 
that  of  the  United  States  against  the  Mexican  territories  of 
New  Mexico  and  Upper  California.  Yet  had  British  arms, 
with  such  a  purpose,  subjugated  those  distant  provinces,  they 
would  at  once,  without  any  act  of  the  Parliament  of  Great 
Britian,  have  become  part  of  the  dominion  of  the  crown.  No 
other  act  than  that  of  conquest,  when  the  avowed  object  is  that 
of  annexation,  is  under  English  law  requisite  to  this  end.  Sub- 
mission to  the  King's  authority  under  such  circumstances 
makes  the  inhabitants  his  subjects.  The  territory  is  no  longer 
regarded  as  foreign  or  the  people  as  aliens.  Except  so  far  as 
rights  have  been  secured  by  terms  of  capitulation  to  the  inhabi- 
tants the  power  of  the  soverign  is  absolute.  The  conquered 
are  at  the  mercy  of  the  conqueror.  Still,  although  deemed  to 
be  British  subjects,  it  is  not  to  be  supposed  that  they  are  pos- 
sessed of  all  the  political  privileges  of  Englishmen,  as  the 
right  to  vote  or  be  represented  in  Parliament. 

If  conquest  be  not  made  with  a  view  to  permanent  annex- 
ation, mere  military  occupation  adds  nothing  in  British  law  to 
the  dominions  of  the  crown,  and  but  temporarily  affects  the  al- 
legiance of  the  people.  The  principle  established  by  British 
prize  adjudications  is  that  where   the   question   is  as  to  the 

i.  Proclamations,  19  Apl.,  27  Apl.,  10  May,  16  Aug.,  1861  ;  12  May,  25 
July,  22  Sept.,  1862  ;  1  Jan.,  1863,  12  Statutes  at  Large  ;  2  Apl.,  23  Sept., 
8  Dec,  1863  ;  18  Feb.,  26  Mch.,  5  July,  1864;  Apl.  ir,  1865,  13  Statutes 
at  Large  ;  Acts  of  July  13,  1861  ;  May  20,  1862  ;  July  17,  1862  ;  March  12, 
1863,  12  Statutes  at  Large,  pp.  257,  404,  589,  820. 


TERRITORY    MILITARILY    OCCUPIED,    ENEMY    TERRITORY.     57 

national  character  of  a  place  in  an  enemy's  country,  it  is  not 
sufficient  to  show  that  possession  or  occupation  of  the  place  was 
taken,  and  that,  at  the  time  in  question,  the  captor  was  in  con- 
trol. It  must  be  shown  either  that  the  possession  was  given 
in  pursuance  of  a  capitulation,  the  terms  of  which  contemplated 
a  change  of  national  character,  or  that  the  possession  was 
subsequently  confirmed  by  a  formal  cession,  or  by  a  long  lapse 
of  time.1 

1.  Blackstone,  2,  p.  107  ;    4,  pp.  4x4-'5  ;    Wheaton,  section  345,  Dana's 
Notes,  169  ;  2  Wallace,  271. 


58  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 


CHAPTER    VI. 

EFFECT   OF   OCCUPATION   ON   LOCAL    ADMINISTRATION. 

Important  consequences  result  from  the  rule  that  territory 
under  military  government  is  considered  foreign.  Imports  into 
and  exports  therefrom  are  regulated  by  the  military  authorities 
acting  either  alone  or  in  conjunction  with  the  law-making 
power. 

Merchandise  of  all  kinds  imported  into  Upper  California, 
while  that  country  was  occupied  by  the  United  States  forces, 
was  subject  to  a  "wTar  tariff"  established  under  the  direction 
of  the  President,  and  which  was  exacted  until  official  notifica- 
tion was  received  by  the  military  governor  of  the  ratification  of 
a  treaty  of  peace.1 

The  rule  which  makes,  for  all  commercial  purposes,  the  citi- 
zens or  subjects  of  one  belligerent  enemies  of  the  government 
and  citizens  or  subjects  of  the  other,  applies  equally  to  civil  and 
to  international  wars.  But  either  belligerent  may  modify  or 
limit  its  operation  as  to  persons,  property,  and  territory  of  the 
other.2  The  course  of  the  National  Government  during  the 
rebellion  furnishes  numerous  illustrations  of  this.  Both  sover- 
eign and  belligerent  rights  were  asserted  and  enforced  as  best 
suited  the  views  of  the  National  Government  and  the  object  of 
the  war,  which  was  the  suppression  of  insurrection  and  restora- 
tion of  the  Union.  The  President,  "pursuant  to  the  laws  of 
the  United  States,  and  of  the  laws  of  nations  in  such  cases  pro- 
vided," issued  proclamations  blockading  the  ports  of  districts 
and  States  in  insurrection.  Congress  passed  an  act  interdict- 
ing all  commercial  intercourse  with  districts  declared  by  the 
President  to  be  in  insurrection,  except  in  the  manner  pointed 
out  in  the  statute.3     Duties  were  not  imposed  on  merchandise 

i.  16  Howard,  189.'  2.  2  Wallace,  274. 

3.  12  Statutes  at  Large,  275. 


EFFECT   OF   OCCUPATION    ON    LOCAL   ADMINISTRATION.       59 

coming  to  loyal  ports  from  reclaimed  rebel  districts  with  which 
intercourse  was  permitted  under  the  law.  Trade  therewith  was 
considered  domestic,  as  regarded  the  revenue  laws  of  the  United 
States.  The  President  alone  had  power  to  license  intercourse. 
And  as  provided  by  the  act  all  intercourse  was  regulated  strictly 
by  the  rules  established  therefor  by  the  Secretary  of  the 
Treasury.1  Further,  when  the  President  had  proclaimed  a 
State  to  be  in  insurrection,  it  wras  judicially  decided  that  the 
courts  must  hold  this  condition  to  continue  until  he  decided  to 
the  contrary.2 

Except  as  restrained  bjr  the  laws  of  nations,  the  will  of  the 
conqueror  is  the  law  of  the  conquered.  By  the  laws  of  war, 
an  invaded  country  may  have  all  its  laws  and  municipal  insti- 
tutions swept  by  the  board.3  Whatever  of  former  laws  are  re- 
tained during  military  government  depends  upon  the  Presi- 
dent and  military  commanders  under  him,  acting  either  inde- 
pendently or  pursuant  to  statute  law.  It  will  be  found  as  a 
rule  that  the  commanding  general  is  left  untrammeled.  It 
necessarily  follows,  when  armies  are  operating  outside  the 
United  States,  that  the  Executive  Department  alone  controls. 
Commanders  acting  under  the  direction  of  the  President  are 
held  responsible  for  the  conduct  and  success  of  military  move- 
ments. As  Congress  has  power  to  declare  war  and  raise  and 
support  armies,  it  must  have  power  to  provide  for  carrying  on 
war  with  vigor.  Having  taken  measures  to  supply  the  neces- 
sary men  and  materials  of  all  kinds,  Congress  does  not  further 
act  unless  in  pursuance  of  some  special  policy.  The  command 
of  the  forces  and  the  conduct  of  campaigns  devolves  alone 
upon  the  President  and  military  officers.  These  matters  lie 
wholly  outside  the  sphere  of  Congressional  action.4 

As  a  rule,  municipal  laws  of  the  territory  under  military 
government  are  continued  in  force  by  the  conqueror  so  far  as 
can  be  consistently  with  effective  military  control.  If  any  local 
authority  continues,  however,  it  will  only  be  with  his  permis- 
sion, and  with  power  to  do  nothing  except  what  he  may  au- 
thorize.5 

1.  3  Wallace,  617  ;  5  Wallace,  630  ;  6  Wallace,  521.  2.   11  American 

Law  Review,  p.  419.  3.  J.  O.  Adams,  House  Representatives,  April  14, 
15,  1842.         4.  4  Wallace,  141.  5.  8  Opinions  Attorney  General,  369; 

9  Opinions  Attorney  General,  140  ;  Bluntschli,  Laws  of  War,  I,  sees.  35,  36. 


60  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

A  system  of  government  which  considers  only  the  will  of  one 
party  to  the  compact  will  be  based  on  the  convenience  of  that 
party.  However  merciful  to  the  vanquished  such  government 
may  be,  those  subjected  thereto  can  scarcely  be  said  to  have 
rights  in  a  proper  sense.  They  have  only  such  as  are  secured 
to  them  under  the  law  of  nations.  Yet  the  modern  doctrine  is 
that  laws  which  regulate  private  affairs,  enforce  contracts, 
punish  crime,  and  regulate  the  transfer  of  property,  remain  in 
full  force  so  far  as  they  affect  the  inhabitants  of  the  country 
as  among  themselves,  unless  suspended  or  superseded  by  the 
conqueror.1  Contracts  and  debts  between  the  people  and  those 
in  the  dominant  country  are  suspended  indeed  in  their 
operation.  2  For  the  protection  and  benefit  of  the  inhabitants, 
and  the  protection  and  benefit  of  others  not  in  the  military 
service  of  the  conqueror,  or,  in  other  words,  in  order  that 
the  ordinary  pursuits  may  not  unnecessarily  be  deranged, 
these  laws  are  generally  allowed  to  continue  in  force  and  to  be 
administered  by  the  ordinary  tribunals  as  before  the  occupation. 
Municipal  officers  can  not  work  their  fellow-citizens  greater  in- 
jury than  by  abandoning  their  posts  at  the  approach  of  the 
enemy. 

The  importance  of  this  rule  will  appear  upon  the  slightest  re- 
flection. The  existence  of  war  and  military  government  does 
not  do  away  with  the  necessity  for  the  administration  either 
of  municipal  laws  or  some  substitute  for  them.  The  prac- 
tical application  of  the  rule  relieves  the  commander  of  the  oner- 
ous functions  of  civil  government  in  so  far  as  he  may  deem 
this  necessary  or  advisable  ;  and  it  tends  to  secure  the  happi- 
ness of  the  governed  and  consequently  their  contentment.  As 
the  commander  has  absolute  control,  the  rule  enables  him  not 
only  to  advance  legitimate  schemes  for  the  prosecution  of  the 
war,  but  at  the  same  time  disturbs  the  least  possible,  the  busi- 
ness pursuits  and  social  relations  of  the  people.  It  is  based  on 
principles  of  common  justice  and  common  sense,  and  in  mod- 
ern times  has  received  almost  universal  sanction. 

During  the  occupation  of  New  York  city  by  the  British 
army   from   1776  to   the  end  of  the   Revolutionary  War,  the 

1.  Coleinan  v.  Tennessee,  97  U.  S.,  517;  Instructions,  Armies  in  the 
Field,  G.  O.  100,  A.  G.  O.  1863,  section  2. 

2.  Cobbett,  p.  108  ;  Manning,  p.  176. 


EFFECT    OF    OCCUPATION   ON    LOCAL   ADMINISTRATION.      6 1 

operation  of  municipal  laws  was  undisturbed  except  when  it 
was  found  necessary  for  the  military  to  interfere.  Similar  in- 
stances occurred  during  the  occupation  of  New  Orleans  and  its 
environments  by  the  Union  forces  from  May,  1862,  until  the  end 
of  the  rebellion  ;  of  Memphis,  Tennessee,  from  June,  1862, 
until  the  end  of  war  ;  while,  in  the  appointment  of  military 
governors  in  various  of  the  conquered  States,  and  the  deter- 
mining their  jurisdiction  and  authority,  the  principle  was  uni- 
formly acted  upon  of  preserving  in  full  vigor  the  local  laws  of 
the  districts  so  far  as  this  was  compatible  with  the  objects  and 
conduct  of  the  war. 

Our  enemy,  during  the  civil  war,  acted  upon  the  same  princi- 
ple. When  the  Territory  of  Arizona  was  occupied  by  Confeder- 
ate forces  in  August,  1861,  their  commander  issued  a  proclama- 
tion placing  the  country  under  military  government.  Executive 
and  judicial  departments  were  organized,  but  all  municipal 
laws  not  inconsistent  with  the  Constitution  and  laws  of  the 
Confederate  States  were  continued  in  force.1 

While,  during  the  Mexican  war,  the  armies  of  the  United 
States  occupied  different  provinces  of  that  republic,  the  com- 
manding general  allowed,  or,  rather,  required,  the  magistrates 
of  the  country,  municipal  or  judicial,  to  continue  to  administer 
the  laws  of  the  country  among  their  countrymen — in  subjection 
always  to  the  dominant  military  power,  which  acted  summarily 
and  according  to  discretion,  when  the  belligerent  interests  of 
the  government  required  it.2  So  when  New  Mexico  was  taken 
possession  of  during  that  war  and  there  was  ordained,  under  the 
sanction  of  the  President,  a  provisional  government  in  place 
of  the  old,  the  commanding  general  announced  to  the  people 
that  by  this  substitution  of  a  new  supremacy,  although  their 
former  policical  relations  were  dissolved,  yet  their  private  rela- 
tions, their  vested  rights,  or  those  arising  from  contract  or 
usage  under  the  displaced  government,  remained  in  full  force 
and  unchanged,  except  so  far  as  in  their  nature  and  character 
they  were  found  to  be  in  conflict  with  the  Constitution  and 
laws  of  the  United  States,  or  with  any  regulations  which  the 
occupying  authority  should  ordain.3 

1.  R.  R.  S.,  1,  v.  4,  p.  20.  2.  S  Opinions,  369. 

3.  20  Howard,  177. 


62  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

Political  laws  are  enacted  for  the  convenience,  security,  and 
administration  of  government.  These,  upon  the  military  occu- 
pation of  a  State  by  an  enemy,  cease  to  have  validity.1  By  that 
event  a  new  government  based,  not  upon  the  express,  though 
it  may  be  implied,  consent  of  the  people  takes  the  place  of  the 
old.  And  while  municipal  laws  may  be  retained  in  the  subju- 
gated district,  this,  in  the  nature  of  things,  can  not  be  true  of 
political  laws  which  prescribed  the  reciprocal  rights,  duties, 
and  obligations  of  government  and  its  citizens.'  As  the  State 
has  not  been  able  to  protect  its  citizens  they  can  not  after- 
wards be  punished  for  having  acquiesced  in  the  authority 
that  has  gained  control.  If  they  remain  quietly  as  non-com- 
batants they  will  be  protected.3  The  commander  of  the  occupy- 
ing forces  has  a  right  to  require  of  the  inhabitants  an  oath  of 
fealty  to  him  not  inconsistent  with  their  general  and  ultimate 
allegiance  to  their  own  State.4  He  may  require  them  to  do 
police  service,  but  not  to  take  arms  against  their  own  country.5 
Indeed,  in  the  absence  of  any  such  formal  promise,  it  is  under- 
stood in  modern  times  that  by  taking  the  attitude  of  non-combat- 
ants and  submitting  to  the  authority  of  the  conqueror,  the  citi- 
zen holds  himself  out  as  one  not  requiring  restraint,  and  is  treated 
as  having  given  an  implied  parole  to  that  effect.  Combatants,  or 
persons  who,  by  resistance,  or  attempts  at  resistance,  or  by  re- 
fusal to  submit,  take  the  attitude  of  combatants,  may  be  placed 
under  restraint  as  prisoners  of  war.  Some  modern  writers  have 
gone  so  far  as  to  contend  that  citizens  who  come  under  tempo- 
rary or  partial  allegiance  to  the  conqueror,  can  not  throw  it  off 
and  resist  the  authority  by  force  except  on  grounds  analogous 
to  those  which  justify  revolution.6  But  this  seems  to  be  rather 
a  matter  of  policy  than  law. 

During  the  occupation  the  inhabitants  become  subject  to  such 
laws  as  the  conqueror  may  choose  to  impose.  In  the  nature  of 
things  none  other  can  be  obligatory.  Where  there  is  no  pro- 
tection or  sovereignty  there  can  be  no  claim  to  obedience  set  up 

i.  Maine,  p.  179;  Manning,  p.  182  ;  Hall,  p.  402. 

2.  Halleck,  chapter  32,  sec.  4  ;  Boyd's  Wheaton,  sec.  346  (e). 

3.  4  Wheaton,  246  ;  S  Wallace,  1  ;  96  U.  S.,  189. 

4.  Hall,  p.  437  ;  American  Instructions,  sec.  1,  par.  26. 

5.  Instructions  U.  S.  Armies  in  the  Field,  sec.  2,  clause  3. 

6.  Dana's  Wheaton,  note  169,  p.  436;  Halleck,  chap.  32,  sec.  19. 


EFFECT    OF   OCCUPATION    ON    LOCAL   ADMINISTRATION.       63 

by  the  ancient  State.1  While  military  government  exists  it 
must  be  obeyed  in  civil  matters  by  citizens  who  by  acts  of 
obedience  rendered  in  submission  to  overpowering  force  do  not 
become  responsible,  as  wrong-doers,  for  those  acts,  though  not 
warranted  by  the  laws  of  the  rightful  government. 2  The  British 
Government  exercised  all  civil  and  military  authority  over 
Castine,  Maine,  when  reduced  by  its  arms.  The  obligations  of 
the  people  of  Castine  as  citizens  of  the  United  States  were  not 
thereby  abrogated.''  They  were  suspended  merely  by  the  pres- 
ence, and  only  during  the  presence,  of  paramount  hostile  forces. 
And  it  became  the  duty  of  the  government  of  occupation  to  pro- 
vide as  far  as  possible  for  the  security  of  persons  and  property 
and  the  administration  of  justice.4  To  the  extent  of  actual 
supremacy,  in  all  matters  of  government  within  its  military 
lines,  its  power  could  not  be  questioned.  Therefore  obedience 
to  its  authority  in  civil  and  local  matters  was  not  only  a 
necessity  but  a  duty.  Without  such  obedience,  civil  order 
would  be  impossible.5  On  the  other  hand,  it  owed  and  should 
have  extended  protection  to  those  who  submitted  to  its  au- 
thority. 

Ordinarily  the  rules  by  which  military  government  is  enforced 
are  prescribed  by  the  commander.  Being  upon  the  theatre  of 
operations,  and  answerable  to  his  government  for  the  success  of 
its  arms,  he  has  superior  facilities  for  judging  as  to  measures 
best  calculated  to  attain  the  objects  of  military  occupation  and 
the  highest  motives  for  wishing  their  adoption.  Unless  his 
measures  have  been  prescribed  by  higher  authority,  the  com- 
mander will  himself  formulate  and  carry  the  details  of  military 
government  into  execution.  He  acts  in  strict  subordination  to 
the  supreme  executive  power  of  the  State.  Yet  the  relation 
which  the  conquered  district  occupies  toward  the  government  of 
the  conqueror  depends,  not  upon  the  law  of  nations,  but  upon 
the  constitution  and  laws  of  the  conquering  State.6 

The  right  of  the  law-making  power  to  enact  such  laws,  look- 
ing to  an  effective  military'government  as  will  best  meet  the 

1.  Boyd's  Wheaton,  p.  412  ;  Bluntschli,  I,  sec.  35.  2.  Thorington  v. 

Smith,  8  Wallace,  9.  3.  4  Wheaton,  253.  4.  The  Grapeshot,  9  Wall, 
132.  5  Thorington  v.  Smith,  8  Wallace,  11  ;  Williams  v.  Bruffy,  96 
U.  S.,  189;  Bluntschli,  Laws  of  War,  I,  sees.,  64,  122.  6.  Flemming  v. 

Page,  9  How.,  615  ;    Dana's  Wheaton,  p.  437,  note  169. 


64  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

views  of  the  dominant  State  in  prosecuting  hostilities,  can  not 
be  questioned.  The  authority  of  Congress,  in  this  regard, 
under  their  constitutional  powers  to  declare  war  and  raise  and 
support  armies  is  complete.1  This  power  would  be  made 
effective,  not  by  laws  which  purport  to  operate  directly  upon  the 
people  of  the  conquered  district,  and  which  so  long  as  the  terri- 
tory is  foreign  Congress  has  no  authority  to  enact,  but  laws  for 
the  guidance  of  the  general  or  other  official  entrusted  with  the 
details  of  military  government.  When  Wellington  in  France  and 
Scott  and  other  commanders  in  Mexico  instituted  military  gov- 
ernment, it  was  simply  an  incident  in  the  conduct  of  campaigns. 
The  general,  in  each  instance,  acting  under  a  responsibility  to 
his  superiors,  adopted  those  measures  which  he  deemed  best 
for  the  successful  carrying  of  military  government  into  opera- 
tion. His  obligations  in  this  respect  were  the  same  as  wrere  his 
obligations  by  every  means  in  his  powTer  successfully  to  conduct 
the  campaign  against  the  enemy.  Placed,  because  of  confi- 
dence reposed  in  his  ability  and  skill  as  a  military  chief,  in  a 
position  of  responsibility  he  wrill  generally,  if  there  be  no 
ulterior  object  in  view  beyond  the  simple  triumph  of  arms,  be 
permitted  to  carry  on  the  details  of  military  government 
unrestrained  by  orders  from  distant  superiors  or  by  legislative 
enactments.2 

The  views  of  the  conquering  State  may,  however,  be  of 
a  nature  materially  to  modify  these  ordinary  discretionary 
powers  of  the  commander.  Such  was  the  case  as  has  been  seen 
when  California  and  New  Mexico  were  subjugated  by  the 
arms  of  the  United  States.  As  it  was  predetermined  by  the 
government,  not  only  to  reduce  those  provinces  to  submission, 
but  permanently  to  annex  them  to  the  territory  of  the  Union, 
the  instructions  to  military  commanders  it  will  be  remembered 
were  in  consonance  with  this  policy.  The  laws  they  enforced, 
the  institutions  they  set  up  over  the  people  occupying  the  sub- 
jugated districts,  were  not  necessarily  those  which  the  command- 
ers themselves  deemed  best,  but  such  as  comported  with  the 
determination  of  the  government  regarding  annexation,  and 
orders  given  in  pursuance  thereof  by  the  President.  Instruc- 
tions emanating  from  this  source  are  of  course  equally  binding, 

i.  Kent,  I,  p.  93,  note.  2.  22  Wallace,  297. 


EFFECT   OF   OCCUPATION    ON    LOCAL   ADMINISTRATION,      65 

directly  upon  the  commander  enforcing,  and  indirectly  upon 
the  inhabitants  of  districts  subjected  to,  military  government. 

The  capture  and  permanent  occupation  of  insurrection ary 
districts  by  the  Union  forces  during  the  Rebellion  furnish  other 
illustrations  of  this  principle.  The  military  commanders  had 
a  duty  to  perform  in  conquering  the  rebellion  ;  but  their  course 
regarding  the  government  of  the  districts  occupied  was  modi- 
fied by  the  policy  of  the  Government  of  the  United  States 
toward  the  people  residing  there.  So  far  as  possible  consist- 
ently with  the  triumph  of  its  arms  they  were  treated  by  the 
National  Government  as  if  their  political  relations  had  never 
been  interrupted.1  Accordingly,  when  a  Federal  commander 
assumed  the  reins  of  military  government,  and  announced  the 
principles  by  which  he  would  be  guided  in  its  administration, 
promising  protection  to  persons  and  property  subject  only  to 
the  laws  of  the  United  States,  it  was  judicially  held  that  he 
thereby  did  but  reiterate  the  rules  established  by  the  legisla- 
tive and  executive  departments  of  the  government  in  respect 
to  those  portions  of  the  States  in  insurrection,  occupied  and 
controlled  by  the  forces  of  the  Union.2  By  numerous  acts  of 
Congress,  and  by  proclamations  of  the  President  issued  either 
pursuant  thereto  or  by  virtue  of  his  authority  as  commander- 
in-chief,  this  policy  of  the  legislative  and  executive  departments 
was  made  known.  And  thereby,  to  the  extent  indicated  by 
that  policy  and  the  additional  orders  of  the  President  issued 
from  time  to  time,  was  modified  that  discretion  which  com- 
manders otherwise  would  have  exercised  in  parts  of  insurgent 
territory  subjected  to  military  government. 

Napoleon  established  military  governments  in  Spain,  in 
Navarre,  Catalonia,  Aragon,  Andalusia,  and  other  provinces. 
One  object  seems  to  have  been  the  more  completely  to  bring 
forth  and  best  utilize  the  military  resources  of  the  country. 
Further,  it  was  hoped  to  accustom  the  people  to  French, 
although  military,  rule,  and,  when  the  proper  time  came  this 
system  could  be  abandoned  and  the  government  of  King 
Joseph  naturally  take  the  place  of  it.  The  plan  was  of  the 
far-reaching  nature  of  all  Napoleon's  schemes  of  conquest. 
Events  rendered  it  abortive.  But,  as  a  complete  system  of 
military  government,  nothing  in  history  exceeds  in  instructive- 
ness  this  attempt  to  reduce  the  Spaniards  piecemeal  into  sub- 
jection with  a  view  to  the  subversion  of  their  kingdom.3 

1.  The  Venice,  2  Wallace,  277-'8  2.   Ibid,  276-7. 

3.  Napier,  Book  XI,  ch.  II,  pp.  S4-5. 


66  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 


CHAPTER  VII. 

AGENTS    FOR    CARRYING   INTO   EXECUTION. 

Among  the  incidents  which  attach  to  the  establishment  of 
military  government  is  the  appointment  of  the  agents  by  whom, 
and  a  determination  of  the  principles  by  which,  it  is  to  be  ad- 
ministered. It  is  indispensable  that  these  matters  be  wisely 
determined  in  order  to  secure  the  objects  for  which  such  gov- 
ernment is  established. 

The  selection  of  these  agents  rests  entirely  with  the  govern- 
ment of  the  occupying  army.1  From  necessity  they  will,  in  the 
first  instance,  ordinarily  be  military  officers  ;  as,  when  the  ter- 
ritory is  first  occupied,  the  officials  on  the  spot,  competent  from 
their  training  and  with  the  requisite  force  at  hand  to  render 
military  government  successful,  are  the  commander  of  the 
army  and  his  subordinates.  The  home  government  may,  from 
considerations  of  policy,  adopt  a  course  in  selecting  agents 
when  military  government  is  set  up  over  foreign  territory  dif- 
fering from  that  observed  when  it  is  established  within  districts 
occupied  by  rebels  treated  as  belligerents.2  Again,  if  it  be  in- 
tended permanently  to  annex  foreign  territory  so  occupied, 
every  means  probably  will  be  made  use  of  to  allay  the  fears  and 
win  the  confidence  of  the  conquered  people  by  adopting  toward 
them  a  line  of  conduct  which  they  can  see  is  calculated  to 
guard  their  rights  and  liberties,  civil  and  religious,  and  render 
them  secure  in  person  and  property. 

In  his  instructions  to  General  Kearney,  of  June  3,  1846,  Sec- 
retary of  War  Marcey  showed  the  deep  solicitation  of  the  Gov- 
ernment upon  this  point  when  he  observed:  "Should  you 
conquer  and  take  possession  of  New  Nexico  and  Upper  Cali- 
fornia, you  will  establish  temporary  civil  governments  therein, 

1.  Hall,  p.  436. 

2.  The  Germans,  in  1870,  at  least  in  Alsace  and  Lorraine,  appointed 
officials  in  every  department  of  the  administration  and  of  every  rank. 
This  was  a  predetermined  policy,  looking  to  the  absorption  of  those  prov- 
inces. 


AGENTS    FOR    CARRYING    INTO    EXECUTION.  67 

abolishing  all  arbitrary  distinctions  that  may  exist,  so  far  as  it 
may  be  done  with  safety.  In  performing  this  duty  it  would  be 
wise  and  prudent  to  continue  in  their  employment  all  such  of 
the  existing  officers  as  are  known  to  be  friendly  to  the  United 
States.  *  *  *  *  You  may  assure  the  people  of  those  pro- 
vinces that  it  is  the  wish  and  design  of  the  United  States  to 
provide  for  them  a  free  government,  with  the  least  possible  de- 
lay, similar  to  that  which  exists  in  our  territories.  *  *  *  * 
It  is  foreseen  that  what  relates  to  the  civil  government  will  be 
a  difficult  and  unpleasant  part  of  your  duty,  and  much  must 
necessarily  be  left  to  your  own  discretion.  In  your  whole  conduct 
you  will  act  in  such  a  manner  as  best  to  conciliate  the  inhabitants 
and  render  them  friendly."  Pursuant  to  these  instructions  the 
so-called  civil  government  was  erected  in  New  Mexico  within 
one  month  of  the  entry  of  the  forces  of  the  United  States  into 
the  capital  of  that  territory.  The  officers  consisted  of  a  gov- 
ernor, secretary,  marshal,  district  attorney,  treasurer,  auditor, 
and  three  supreme  court  judges.  Of  course,  nothing  except 
the  presence  of  superior  military  force  enabled  these  officials — 
civilians — to  perform  their  appropriate  duties.  The  govern- 
ment was  that  of  the  sword  ;  called  by  a  different  name  to  be 
more  pleasing  to  the  people. 

In  California  essentially  the  same  policy  was  pursued.  On 
August  17,  1846,  Commodore  Stockton,  U.  S.  N.,  styling  him- 
self commander-in-cheif  and  governor  of  California,  issued  a 
proclamation  announcing  the  annexation  of  the  territory  to  the 
United  States  and  calling  on  the  people  to  meet  in  their  several 
towns  and  departments  and  elect  civil  officers  to  fill  the  places 
of  those  who  refused  to  continue  in  office.  Within  a  month 
after  a  territorial  form  of  government  was  announced.  Yet  not- 
withstanding this  apparent  deference  to  civil  government  the 
following  passage  in  the  proclamation  shows  how  completely  the 
country  was  held  under  military  control :  '  'All  persons  are 
required,  so  long  as  the  territory  is  under  martial  law,  to  be  in 
their  houses  from  10  o'clock  at  night  until  sunrise  in  the  morn- 
ing." 

Commodore  Stockton  was  succeeded  by  Commodore  Shu- 
brick,  U.  S.  N.  Meanwhile,  General  Kearney,  U.  S.  A.,  leav- 
ing sufficient  force  behind  him  to  maintain  the  authority  of  the 
United  States  in  New  Mexico,  marched  with  the  rest  of  his 


68  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

command  into  California.  Here,  March  ist,  1847,  these  two 
officials  issued  a  joint  circular  to  the  people  of  the  conquered 
provinces  reciting  that  the  President  had  assigned  the  regu- 
lation of  import  trade,  the  conditions  on  which  all  vessels  should 
enter  ports  of  the  territory,  and-  the  establishment  of  port 
regulations  to  the  naval  authorities  ;  while  to  the  military  au- 
thorities were  given  the  direction  of  the  operations  on  land, 
and  the  administrative  functions  of  government  over  territory 
thus  occupied  by  their  forces.  Following  this,  what  was 
styled  a  ' '  civil, ' '  but  what  in  fact  was  a  military  government, 
was  organized,  the  officials  of  which,  unlike  those  in  New 
Mexico,  were  army  or  navy  officers.  Municipal  affairs  were 
carried  on  the  same  as  before  occupation,  by  officers  either 
chosen  by  the  people  under  the  authority  of  the  conqueror,  or 
holding  over  under  that  authority,  and  in  accordance  with  local 
laws. 

In  those  districts  occupied  by  our  forces  and  concerning 
which  schemes  of  permanent  conquest  were  not  meditated, 
military  commanders  governed  strictly  in  accordance  with  the 
laws  of  war. 

Both  Generals  Scott  and  Taylor  were  at  first  instructed  by  the 
Secretary  of  War  to  supply  their  armies  in  Mexico  by  forced 
contributions  from  the  enemy  without  paying  therefor,  but  this 
policy  was  not  adhered  to;  instead,  when  practicable,  necessaries 
were  purchased  of  the  inhabitants  and  paid  for  at  a  fair  price.1 

On  Scott's  line  of  operations,  at  least,  the  protection  of  re- 
ligion, property,  and  industry  were  coextensive  with  military 
occupation. 

These  principles  of  liberality  in  dealing  with  the  enemy  were 
swayed  by  considerations  of  policy  resulting  from  the  determina- 
tion to  render  the  military  government  set  up  over  the  conquered 
provinces  sources  of  revenue  to  the  Government  of  the  United 
States.  The  President,  with  a  view  to  impose  a  burden  on  the 
enemy,  deprive  him  of  the  profits  to  be  derived  from  trade  and  se- 
cure it  to  the  United  States,  ordered  that  all  the  ports  and  places 
in  Mexico  in  actual  possession  of  the  land  and  naval  forces 
should  be  open,  while  the  military  occupation  continued,  to  the 
commerce  of  all  neutral  nations,  as  well  as  of  the  United  States, 

1.  Kent  1,  p.  92  (b)  ;  Autobiography  of  Leiut.-Gen.  Scott,  p.  580. 


AGENTS    FOR    CARRYING   INTO   EXECUTION.  69 

in  articles  not  contraband  of  war,  upon  the  payment  of  a  pre- 
scribed tariff  of  duties  and  tonnage  prepared  under  his  in- 
structions and  to  be  enforced  by  the  military  and  naval 
commanders.  He  claimed  and  exercised,  as  being  charged  by 
the  Constitution  with  the  prosecution  of  the  war,  the  belliger- 
ent right  to  levy  military  contributions  and  to  collect  and  apply 
the  same  towards  defraying  the  expenses  of  the  war.  The 
execution  of  the  commercial  regulations  was  placed  under  the 
control  of  the  military  and  naval  forces,  and,  with  the  policy 
of  blockading  some  and  opening  other  Mexican  ports,  the 
whole  commerce  for  the  supply  of  Mexico  was  compelled  to 
pass  under  the  control  of  the  American  forces,  subject  to  the 
contributions,  exactions,  and  duties  so  imposed.1 

When  military  government  is  instituted  in  States  or  districts 
occupied  by  rebels  treated  as  belligerents,  political  considera- 
tions will  generally  determine,  even  more  than  when  armies  are 
on  foreign  soil,  who  the  agents  shall  be  to  carry  it  into  execu- 
tion. They  may  be  either  civil  or  military,  depending  upon 
circumstances,  although  the  only  efficient  coercive  power 
will  always  be  the  military.  The  right  to  put  into  operation 
the  sterner  rules  of  war  applicable  to  the  case  is  unquestioned. 
The  animosities  which  civil  war  engender  are  calculated  to 
prompt  to  the  exercise  of  these  rules  in  all  their  rigor.  On 
the  other  hand,  nations  do  not  pursue  schemes  of  conquest,  in 
the  proper  sense  of  the  term,  against  revolted  subjects.  As 
against  them  war  is  waged  not  for  conquest,  but  to  bring  them 
to  a  sense  of  duty,  vindicate  the  integrity  of  offended  law,  and 
preserve  unimpaired  both  the  territory  and  institutions  of  the 
legitimate  government.  No  war  of  which  history  furnishes 
record  has  given  occasion  for  the  application  of  these  principles 
to  the  extent  of  the  Civil  War  in  the  United  States  from  1861 
to  1865.  As  the  hostile  line  was  driven  back,  military  com- 
manders exercised,  over  the  territory  so  reclaimed  the  rights  of 
conquerors  it  is  true,  but  only  to  the  extent  that  this  accorded 
with  the  political  policy  of  the  National  Government. 

When  New  Orleans  was  occupied  by  the  Union  forces  in  1862 
the  commanding  general  enjoined  upon  all  the  inhabitants  the 
pursuit  of  their  usual  avocations.     So  long  as  they  did  this  in 

1.  Kent,  1,  p.  92  (b)  ;  Fleming  v.  Page,  9  Howard,  616. 


70  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

good  faith  they  were  protected.  Disorders  and  disturbances  of 
the  peace,  caused  by  combinations  of  citizens,  and  crimes  of 
an  aggravated  nature  interfering  with  the  forces  or  laws  of  the 
United  States,  were  referred  to  a  military  court  for  trial  and 
punishment;  other  misdemeanors  were  made  subject  to  municipal 
authority,  and  so  with  regard  to  civil  causes  between  party 
and  party.  A  censorship  was  instituted  over  the  press  of  the 
city.1  All  the  officials  appointed  by  the  commander  to  enforce 
the  military  government  were  officers  of  the  army. 

The  same  rule  of  conduct  controlled  at  Memphis,  Tenn. ,  and 
at  many  other  important  points.  In  truth,  throughout  the  Civil 
War  the  generals  in  command,  wherever  in  conquered  rebel- 
lious territory  it  was  determined  to  establish  order  upon  a  basis 
which  it  was  hoped  would  prove  permanent,  resorted  to  meas- 
ures which  are  sanctioned  by  the  laws  of  war  applicable  to 
armies  operating  in  foreign  territory,  except  as  these  were 
modified  by  the  conciliatory  policy  of  the  Federal  Government. 
An  important  feature  consisted  of  military  commissions  com- 
posed of  military  officers  only.  And  this  summary  system  of  judi- 
cature was  supplemented,  so  far  as  practicable  or  the  military 
commander  deemed  it  advisable  by  the  civil  authorities  of  the 
district  occupied  ;  the  latter,  of  course,  to  take  cognizance  only 
of  transactions  affecting  the  inhabitants  in  their  dealings  with 
each  other,  and  enforcing,  as  to  them,  the  local  law  in  its 
criminal  and  civil  branches.3 

But  the  fact  that  the  object  in  suppressing  rebellion  is  neither 
conquest  nor  subjugation,  but  overthrow  of  the  insurgent  or- 
ganization and  the  re-establishment  of  legitimate  authority,5 
prompts  to  the  establishment  of  quasi-civil  governments  in  in- 
surgent territory  permanently  occupied  by  the  national  forces  ; 
and  this,  not  because  military  government  pure  and  simple  is 
either  illegal  or  inadequate  under  the  circumstances,  but  from 
considerations  springing  out  of  an  enlarged  and  enlightened 
public  policy,  which  seeks  to  demonstrate  to  all  concerned  that 
the  main  object  of  the  war  is  the  maintenance  of  national 
supremacy,  and  that  every  measure  is  to  be  adopted,  in  the  or- 
ganization of  the  governments  temporarily  established  upon 

I.  Rebellion  Records,  series  I,  vol.  6,  p.  717.  2.  lb.,  vol.  11,  part  III, 

p.  77  1  vol.  14,   p.  334;  vol.   17,  part  2,   p.  41  ;  vol.  4,  p.  20.  3.  The 

Grapeshot,  9  Howard,  132. 


AGENTS  FOR  CARRYING  INTO  EXECUTION.        7 1 

secure  military  occupation,  to  facilitate  the  return  of  the  people 
to  their  former  position  as  subjects,  under  such  conditions  and 
limitations  as  may  be  imposed  by  legitimate  govermental  au- 
thority. 

This  policy  was  early  adopted  and  consistently  followed  by 
the  Government  of  the  United  States  during  the  Civil  War. 
And  it  was  truthfully  and  patriotically  said  at  the  time  that 
' '  to  permit  people  so  circumstanced  to  be  governed  by  rules, 
regulations,  statutes,  laws,  and  codes  of  jurisprudence  ;  to  give 
them  jurists  able  and  willing  to  abide  by  standing  laws,  and 
thus  to  restore  (as  far  as  is  consistent  with  public  safety  and 
the  secure  tenure  of  conquest),  the  blessings  of  civil  liberty  and  a 
just  administration  of  laws — most  of  which  are  made  by  those  on 
whom  they  are  administered — is  an  act  of  magnanimity  worthjr 
of  a  great  people.  Such  a  government,  though  founded  on  and 
administered  by  military  power,  surely  tends  to  restore  the 
confidence  of  the  disloyal  by  giving  them  rights  they  could  not 
otherwise  enjoy,  and  by  protecting  them  from  unnecessary 
hardships  and  wrongs.  It  can  not  fail  to  encourage  and  sup- 
port the  friends  of  the  Union  in  disloyal  districts,  by  demon- 
strating to  all  the  forbearance  and  justice  of  those  who  are 
responsible  for  the  conduct  of  the  war. ' '  1 

Accordingly,  after  the  capture  of  Forts  Henry  and  Donaldson 
and  the  occupation  of  Nashville  by  the  Union  forces,  the  Presi- 
dent commissioned  Andrew  Johnson  as  military  governor  of 
Tennessee,  the  eastern  part  of  which  State  had  always  been 
loyal  to  the  Union.  Mr.  Johnson  resigned  his  seat  in  the  United 
States  Senate  to  accept  that  of  military  governor  to  legalize  the 
powers  and  facilitate  the  performance  of  the  duties  of  which  it 
was  deemed  expedient  to  confer  upon  him  the  military  rank  of 
brigadier  general  to  which  he  was  duly  nominated  by  the 
President  and  confirmed  by  the  Senate. 

In  North  Carolina,  after  the  capture  by  the  Union  forces  of 
nearly  all  the  forts  and  important  points  on  the  coast  and  ad- 
jacent thereto,  the  Honorable  Edward  Stanley  was  appointed  , 
by  the  President,  May  19,  1862,  military  governor.  Similarly, 
on  June  3,  1862,  after  the  occupation  of  New  Orleans  and  con- 
tiguous territory  by  the  Federals,  George  B.  Shepley  was  ap- 

1.  Whiting  War  Powers,  10th  edition,  p.  265. 


72  MILILARY    GOVERNMENT   AND    MARTIAL    EAW. 

pointed  military  governor  of  the  State  of  Louisiana,  with  rank 
of  brigadier  general.  To  each  was  given  authority  to  exercise 
and  perform,  within  the  limits  of  his  State  all  and  singular  the 
powers,  duties,  and  functions  pertaining  to  the  office  of  military 
governor  (including  the  power  to  establish  all  necessary  offices 
and  tribunals  and  suspend  the  writ  of  habeas  corpus)  during  the 
pleasure  of  the  President,  or  until  the  loyal  inhabitants  of  the 
State  should  organize  a  civil  government  in  conformity  with 
the  Constitution  of  the  United  States.  The  authority  given 
was  plenary.  But  in  the  nature  of  things  it  could  be  exercised 
only  over  that  portion  of  each  State  controlled  by  the  Union 
armies.  The  effective  authority  of  the  military  governor  re- 
sulted from  the  fact  alone  that  the  army  was  at  hand  to  enforce 
his  mandates.  Without  this  his  assumption  of  power  was  an 
empty  show. 

In  no  other  States  than  those  mentioned  were  military  gov- 
ernors appointed  until  after  the  final  surrender  of  the  rebel 
armies.  Nor  was  this  done  because  of  lack  of  scope,  vigor,  and 
efficiency  of  the  military  rule  of  commanders  of  occupying 
forces  ;  but  wholly  from  considerations  of  expediency.  In  one 
important  respect  the  measure  was  positively  detrimental.  It 
necessitated  two  sets  of  officials  with  diverse  responsibilities, 
when  for  all  purposes  of  government  the  military  alone  were 
sufficient  ;  further,  the  relative  powers  and  duties  of  each  set, 
undefined  as  they  were  in  great  degree,  might,  as  indeed  they 
sometimes  did,  lead  to  clashing  of  authority. 

When  this  occurred  in  important  matters  army  commanders 
as  a  rule  carried  the  day,  because  to  them  was  entrusted  the 
duty  of  suppressing  the  rebellion  by  destroying  the  enemy's 
armies  in  the  field  ;  and,  great  as  might  be  the  desire,  through 
the  instrumentalities  of  civil  officers,  to  assist  in  the  re-estab- 
lishment of  Federal  authority  and  so  to  provide  means  of  protect- 
ing loyal  inhabitants  in  their  persons  and  property  until  they 
should  be  able  to  form  civil  governments  for  themselves,  such 
considerations  necessarily  gave  way  to  the  all-important  object 
of  defeating  and  dispersing  the  armed  forces  of  the  enemy  upon 
which  the  hopes  of  the  rebellion  rested.  The  result  of  this  dual 
system  was  that  while  in  theory  generals  commanding  had 
only  to  fight  battles  and  assist  military  governors  in  the  exe- 
cution of  undefined  civil  duties,  yet,  as  a  practical   fact,  the 


AGENTS    FOR    CARRYING    INTO    EXECUTION.  73 

ruling  power  remained  in  the  hands  of  the  generals  who  alone 
had  at  their  bidding  the  physical  force  necessary  to  cause  their 
orders  and  decisions  to  be  obeyed  and  respected. 

Viewed  from  a  military  standpoint  alone  the  wisdom  of  the 
policy  of  dual  governments  might  appear  doubtful.  The  com- 
manding generals  with  their  armies  had  conquered  and  were 
occupying  the  territory,  and  of  necessity  remained  there  to  hold 
it  and  to  make  it  the  basis  of  further  operations.  They  could 
not  be  dispensed  with.  On  the  other  hand,  from  a  military 
standpoint,  the  military  governors  were  not  indispensable,  and 
with  their  array  of  subordinate  officials,  principally  civilians, 
they  complicated  matters  in  districts  where  the  undisputed 
military  sway  was  of  the  utmost  importance.  But,  as  before 
mentioned,  purely  military  considerations  did  not  determine  the 
policy  of  the  government  in  this  regard.  A  helping  hand  was 
to  be  given  the  people  to  return  to  their  allegiance  under  ac- 
ceptable civil  government.  Staunch  friends  of  the  adminis- 
tration were  not  indeed  united  in  support  of  the  measure.  The 
President  and  his  advisers  decided,  however,  that  this  policy 
was  necessary,  and,  whatever  evils  attended  it,  they  were  un- 
avoidable. Unquestionably  also  the  presence  of  civilian 
assistants  to  the  military  governors,  while  sometimes  they  em- 
barrassed, yet  they  often  relieved  commanding  generals  of  many 
harassing  details  which  invariably  attend  the  administration  of 
governmental  affairs  over  conquered  territory. 

The  successes  of  the  Federal  armies  during  the  third  cam- 
paign of  the  war  encouraged  the  President  to  attempt  an  im- 
provement on  the  plan  before  adopted  for  weakening  rebellion 
by  the  formation  of  State  governments  in  rebellious  districts. 
In  pursuance  of  this  purpose  the  Executive  issued  a  proclama- 
tion on  the  8th  of  December,  1863,1  inviting  the  people  there 
living  to  form  loyal  governments  under  conditions  set  forth  in 
the  proclamation.  This,  like  the  emancipation  proclamation, 
was  clearly  a  war  measure.  In  ^Louisiana  and  Arkansas  gov- 
ernments were  formed  accordingly  early  in  1864,  and  in  Ten- 
nessee early  in  1865.  To  the  State  executives  thus  chosen  were 
given  the  powers  theretofore  exercised  by  the  military  gov- 
ernors.    This  was  simply  a  development  of  the  plan  begun  by 

1.  13  Statutes  at  Large,  738. 


74  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

the  President  two  years  previously  in  the  appointment  of  these 
latter  officials.  It  possessed  this  advanced  and  important  ad- 
ditional feature  of  republican  government  as  contrasted  with 
its  predecessor,  namely,  that  the  new  governments  were  or- 
ganized, the  officials  to  carry  them  on  appointed,  apparently, 
at  least,  by  the  people  governed,  instead  of  by  the  commander- 
in-chief  of  the  army.  But  the  difference  was  merely  apparent 
and  nominal,  not  real.  Each  in  fact  rested  only  on  the  bayonet. 
Neither  could  have  existed  for  a  day  if  the  military  support  of 
the  nation  had  been  withdrawn  ;  and  herein  lay  the  weakness 
of  the  President's  plan  for  establishing  civil  government  in  dis- 
tricts which  were  declared  to  be  in  insurrection.1  In  fact  the 
governments  thus  organized  were  never  recognized  by  Congress, 
Representatives  and  Senators  chosen  thereunder  being  denied 
seats  in  the  respective  houses.  They  were,  however,  apparently 
recognized  by  the  Supreme  Court,  but  as  de  facto  governments 
only,  organized  by  the  President  in  virtue  of  his  authority  as 
commander-in-chief,2  the  court  remarking  that  the  adoption  of 
a  constitution  during  the  war,  under  military  orders,  and  the 
election  of  a  governor,  did  not  affect  the  military  occupation  in 
the  judgment  of  the  national  authorities.3 

Those  were  the  last  governments  organized  while  the  war 
was  flagrant  in  territory  occupied  by  rebels  treated  as  bellig- 
erents ;  and  they  illustrated  the  extreme  development  of  a 
policy  looking  to  the  conciliation  of  conquered  subjects. 
They  were  the  first  efforts  directed  to  a  reconstruction  of 
State  governments  over  insurgent  territories.  Their  organi- 
zation caused  the  first  decided  antagonism  between  the  Ex- 
ecutive and  Congress  growing  out  of  the  conduct  of  the  war  ; 
a  cloud  no  bigger  than  a  man's  hand  but  of  evil  portent, 
the  precursor  of  a  storm  that  well  nigh  swept  a  succeeding 
President  from  his  seat  through  the  extraordinary  measure  of 
impeachment,  and  immutably  determining  that  ultimate  power 
under  our  system  of  government  rests  in  the  people,  to  be  ex- 
ercised through  their  representatives  in  the  two  houses  of 
Congress. 

i.  Twenty  Years  in  Congress,  Blaine,  vol.  2,  p.  174. 

2.  Texas  v.  White,  7  Wallace,  730. 

3.  Handlin  v.  Wickliff,  12  Wallace,  174. 


ALL   INHABITANTS   ENEMIES  ;    LEVIES   EN    MASSE.  75 


CHAPTER    VIII. 

ALL  INHABITANTS  ENEMIES  ;    LEVIES  EN  MASSE. 

When  war  exists  between  nations  all  the  subjects  of  one  are, 
in  contemplation  of  law,  enemies  of  the  subjects  of  the  other.1 
In  this  particular  custom  and  principle  are  in  accord.  Enemies 
continue  such  wherever  they  happen  to  be.  The  place  of 
abode  is  of  no  consequence  here.  It  is  the  political  ties  which 
determine  the  character.  Every  man  is,  in  contemplation  of 
law,  a  party  to  the  acts  of  his  government,  which  is  the  repre- 
sentative of  the  will  of  the  people  and  acts  for  the  whole 
society.  This  is  the  universal  theory.  It  is  not  meant  that 
each  citizen  of  one  attacks  each  subject  of  the  other  belligerent; 
this  he  may  not  do  without  governmental  authorization  and 
according  to  the  customs  of  war  ;  the  most  direct  effect  is  to 
shut  off  friendly  intercourse.  It  makes  no  difference  as  to  the 
belligerent  character  impressed  upon  the  people  whether  the 
government  has  duly  proclaimed  war,  with  all  the  formalties 
of  medieval  or  more  recent  times,  or  not  proclaimed  it  at  all, 
or  whether  it  be  an  act  of  self-defence  simply,  or  result  from 
the  suppression  of  a  rebellion.2  The  theory  that  war  can  not 
be  lawfully  carried  on  except  it  be  formally  proclaimed  is,  as 
before  remarked,  now  justly  exploded. 

Although  all  the  members  of  the  ememy  State  may  lawfully  be 
treated  as  enemies  in  war,  it  does  not  follow  that  all  may  be 
treated  alike.  Some  may  lawfully  be  destroyed,  but  all  may 
not  be,  independently  of  surrounding  circumstances.3  For  the 
general  rule  derived  from  the  law  of  nature  is  still  the  same, 
namely,  that  no  use  of  force  against  an  enemy. is  lawful,  unless 
it  be  necessary  to  accomplish  the  purposes  of  the  war.  As  a 
rule  all  who  are  simply  engaged  in  civil  pursuits  are  exempt 
from  the  direct  effect  of  belligerent  operations,    unless   they 

1.  Manning,  p.  166  ;  Woolsey,  section  125  ;  American  Instructions,  sec- 
tion i,  clauses  21,  23  ;  Bluntschli,  i,  section  2. 

2.  Kent,  1,  p.  55  ;  2  Black,  635.  3.  Bluntschli,  1,  sees.  21,  33,  38. 


76  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

abandon  their  civil  character  and  are  actually  taken  in  arms, 
or  are  guilty  of  some  other  misconduct  in  violation  of  the 
usages  of  war,  whereby  they  forfeit  their  immunity.  The  per- 
sons of  members  of  the  municipal  government,  women  and 
children,  cultivators  of  the  soil,  artisans,  laborers,  merchants, 
men  of  science  and  letters,  are  brought  within  the  operation  of 
the  same  rule  ;  as  are  in  fact  all  those  who  though  technically 
enemies,  take  no  part  in  the  war,  and  make  no  resistance  to  our 
arms.1  So  long  as  these  pay  the  military  contributions  which 
may  be  imposed  upon  them,  and  quietly  submit  to  the  military 
authority  of  the  government,  they  are  permitted  to  continue  in 
the  enjoyment  of  their  property  and  the  pursuit  of  their  ordi- 
nary avocations. 

This  humane  policy  greatly  mitigates  the  evils  of  war  ;  and 
if  the  commander  who  enforces  military  government  maintains 
his  army  in  a  proper  state  of  discipline,  protecting  those  who, 
for  a  pecuniary  consideration,  will  supply  his  troops  with  the 
natural  and  industrial  products  of  the  country,  the  great  prob- 
lems of  an  efficient  transportation  system  and  an  abundant 
commissariat  will  be  greatly  simplified,  and  the  army  be  spared 
many  of  the  dangers  incident  to  a  position  in  a  hostile  country.2 
It  may  be  that  this  policy  is  not  always  practicable.  Protracted 
hostilities  lead  as  a  rule  to  the  enforcement  of  the  maxim  that 
' '  war  must  support  war  "  as  a  military  necessity.  Yet  it  should 
not  be  hastily  adopted,  for  experience  has  shown  that  when 
practicable  the  milder  rule  generally  is  the  wiser.3 

In  his  proclamation  of  August  n,  1870,  on  entering  France 
King  William  said  :  "I  wage  war  against  French  soldiers,  not 
against  French  citizens.  These,  therefore,  will  continue  to 
enjoy  security  for  person  and  property  so  long  as  they  do  not,  by 
committing  hostile  acts  against  the  German  troops,  deprive  me 
of  the  right  of  affording  them  protection." 

This  exemption  from  the  extreme  rights  of  war  is  confined 
to  those  who  refrain  from  all  acts  of  hostility.  If  those  who 
would  otherwise  be  considered  non-combatants  commit  acts  in 
violation  of  this  milder  rule  of  modern  warfare,  they  subject 

1.  Wheaton,  part  4,  sec.  345  ;  Instructions  U.  S.  Armies  in  the  Field, 
sec.  1,  clauses  23,  24,  27  ;  Manning,  p.  204.  2.  Halleck,  chap.  18,  sec.  3. 
3.  Scott's  Autobiography,  550;  Vattel,  book  in,  chap.  8,  sec  147;  Blunt- 
schli,  Laws  of  War,   1,  sec.  59. 


ALL   INHABITANTS   ENEMIES  ;    LEVIES   EN   MASSE.  77 

themselves  to  the  fate  of  the  armed  enemy,  and  frequently  to 
harsher  treatment.  If  some  thus  transgress,  and  they  can  not 
be  discovered,  the  whole  community  frequently  suffers  for  the 
conduct  of  these  few.  In  the  Franco-German  war  it  was  a 
common  practice  for  the  Germans  to  arrest  and  retain  in  custody 
influential  inhabitants  of  places  at  or  near  which  bridges  were 
burned,  railroads  destroyed,  etc.,  by  unknown  parties  within 
occupied  French  territory. 

But  moderation  towards  non-combatants,  how  commendable 
soever  it  be,  is  not  absolutely  obligatory.  If  the  commander 
sees  fit  to  supersede  it  by  a  harsher  rule  he  can  not  be  justly 
accused  of  violating  the  laws  of  war.  He  is  at  liberty  to  adopt 
such  measures  in  this  respect  as  he  thinks  most  conducive  to 
the  success  of  his  affairs.  How  important  it  is,  therefore,  on 
the  ground  of  policy,  even  if  higher  moral  considerations  be 
lost  sight  of,  that  non-combatants  maintain  strictly  their  char- 
acter as  such.  Their  happy  lot,  amidst  war's  desolation,  is 
due  to  the  grace  of  the  conqueror.  If,  therefore,  he  have  cause 
to  suspect  the  good  faith  of  the  inhabitants  of  any  place  or  dis- 
trict he  has  a  right  to  adopt  measures  which  will  frustrate  their 
plans  and  secure  himself.  He  is  responsible  only  to  his  own 
government. 

The  customs  of  modern  warfare,  as  well  as  chivalric  senti- 
ments, prompt  soldiers  to  treat  women  with  all  possible  con- 
sideration. The  commander  who  ruthlessly  makes  war  upon 
the  gentler  sex,  acting  towards  them  with  unnecessary  harsh- 
ness, can  not  escape  the  stigma  attaching  to  such  conduct  in 
the  eyes  of  the  world,  and  may  find  himself  proscribed  for  so 
doing  by  his  enemy.  While,  however,  it  is  true  that  women 
are  protected  in  the  midst  even  of  active  hostilities,  it  is  only 
on  the  implied  condition  that  they  will  in  every  respect  so  con- 

Note — Citizeus  who  accompany  an  army  for  whatever  purpose,  such  as 
sutlers,  editors  or  reporters  of  journals,  or  contractors,  if  captured,  may 
be  made  prisoners  of  war  and  detained  as  such.  The  monarch  and 
members  of  the  hostile  reigning  family,  male  or  female,  the  chief  offi- 
cers of  the  hostile  government,  its  diplomatic  agents,  and  all  persons 
who  are  of  particular  and  singular  use  and  benefit  to  the  hostile  army  and 
its  government,  are,  if  captured  on  belligerent  ground,  and  if  unprovided 
with  a  safe  conduct  granted  by  the  captor's  government,  prisoners  of  war. 
[Instructions  for  Armies  in  the  Field  (G.  O.  ioo,  A.  G.  O.,  1863)]  ;  see  also 
Bluntschli's  Laws  of  War,  1,  sec.  3. 


78  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

duct  themselves  as  to  merit  such  generous  treatment.  They 
must  not  forget  that  they  owe  their  fortunate  position  to  the 
kindness  of  the  conqueror.  But  if  they  adopt  a  course  plainly 
showing  insensibility  to  the  kindness  shown  them,  either  by 
overt  acts  or  secret  plot  tings,  he  is  justified  in  treating  them 
more  rigorously.  Even  women  and  children  may  be  held  under 
restraint  if  circumstances  render  it  necessary  in  order  to  secure 
the  just  objects  of  the  war.  If  the  commander  has  good  and 
sufficient  reasons  for  departing  in  this  regard  from  the  rules 
of  politeness  and  the  suggestions  of  pity  he  may  do  so  without 
being  justly  accused  of  violating  military  customs. 

The  success  of  his  arms  is  the  first  object  of  the  conqueror. 
He  owes  to  his  government  the  duty  of  securing  that  success 
by  every  means  known  to  the  laws  of  war.  Beyond  what  they 
permit  his  conduct  should  not  be  signalized  by  severity.  Each 
case,  as  it  arises,  must  be  judged  by  the  attending  circum- 
stances, the  means  employed,  and  the  danger  they  were  de- 
signed to  guard  against.  The  responsibility  of  the  commander 
is  always  great.  His  conduct  is  not  to  be  hastily  condemned. 
His  acts  are  often  influenced  by  reasons  not  generally  known 
or  which  it  would  be  easy  or  wise  to  explain. 

NOTE. — The  measures  taken  by  Suchet  to  force  the  Spaniards  to  sur- 
render the  citadel  of  the  fortress  of  Lerida,  Valencia,  Spain,  well  illustrate 
the  barbarities  practiced  under  the  laws  of  war,  when  commanders  forget 
the  claims  of  humanity.  When  the  Spanish  troops  retired  into  the 
citadel  they  left  the  inhabitants  behind  them  in  the  city.  "  The  French 
columns  advanced  from  every  side,  in  a  concentric  direction,  upon  the 
citadel,  and,  with  shouts,  stabs,  and  musketry,  drove  men,  women,  and 
children  before  them,  while  the  guns  of  the  castle  smote  friend  and  foe 
alike.  Then,  flying  up  the  ascent,  the  shrieking  and  terrified  crowds 
rushed  into  the  fortress  with  the  retiring  garrison  and  crowded  the  sum- 
mit of  the  rock  ;  but  all  that  night  the  French  shells  fell  amongst  the 
hapless  multitude,  and  at  daylight  the  fire  was  redoubled  and  the  carnage 
swelled  until  Garcia  Conde  (the  Spanish  commander),  overpowered  by 
the  cries  and  sufferings  of  the  miserable  people,  hoisted  the  white  flag. 
Thus  suddenly  was  this  powerful  fortress  reduced  by  a  proceeding,  politic 
indeed,  but  scarcely  to  be  admitted  within  the  pale  of  civilized  warfare. 
For  though  a  town  taken  by  assault  be  considered  the  lawful  prey  of  a 
licentious  soldiery,  this  remnant  of  barbarism,  disgracing  the  military 
profession,  does  not  warrant  the  driving  of  unarmed,  helpless  people  into 
a  situation  where  they  must  perish  from  the  fire  of  the  enemy  unless  a 
governor  fails  in  his  duty.     Suchet  justifies  it  on  the  ground  that  he  thus 


ALL   INHABITANTS   ENEMIES  ;    LEVIES    EN    MASSE.  79 

The  rule  that  war  places  every  individual  of  the  one  in  hos- 
tility to  every  individual  of  the  other  belligerent  State  is  equally 
true  whether  it  be  foreign  or  waged  against  rebels  treated  as 
belligerents.  The  latter  branch  of  the  rule  has  been  affirmed 
in  repeated  decisions  of  the  Supreme  Court  of  the  United  States, 
which  also  establish  the  integrity  of  the  main  proposition. 
"  The  rebellion  against  the  Union,"  it  was  observed  in  one  case, 
"  is  no  loose,  unorganized  insurrection  having  no  defined  boun- 
dary or  possession.  It  has  a  boundary  which  can  be  crossed 
only  by  force — south  of  which  is  enemies'  territory,  because  it 
is  claimed  and  held  in  possession  by  an  organized,  hostile,  and 
belligerent  power.  All  persons  residing  within  this  territory 
whose  property  may  be  used  to  increase  the  revenues  of  the 
hostile  power,  are,  in  this  contest,  liable  to  be  treated  as 
enemies.  This  court  can  not  inquire  into  the  personal  character  of 
individual  inhabitants  of  enemy  territory.  We  must  be  governed 
by  the  principle  of  public  law,  so  often  announced  from  this  bench 
as  applicable  to  civil  and  international  wars,  that  all  the  people 
in  each  State  or  district  in  insurrection  against  the  United 
States  must  be  regarded  as  enemies,  until  by  the  action  of  the 
legislature  and  the  executive,  or  otherwise,  that  relation  is 
thoroughly  and  permanently  changed."  l  The  decisions  of  the 
court,  extending  over  the  period  of  the  Civil  War  and  after- 
wards, definitely  settled  as  principles  of  law  that  the  district  of 
country  declared  by  the  constituted  authorities  to  be  in  insur- 
rection against  the  United  States  was  enemy  territory  ;  and 
that  all  the  people  residing  within  such  district  were,  accord- 
ing to  public  law  and  for  all  purposes  connected  with  the 
prosecution  of  the  war,  liable  to  be  treated  by  the  United  States, 
pending  the  war  and  while  they  remained  within  the  lines  of 
the  insurrection,  as  enemies,  without  reference  to  their  personal 

spared  a  great  effusion  of  blood  which  must  necessarily  have  attended  a 
protracted  siege,  and  the  fact  is  true.  But  this  is  to  spare  soldiers'  blood 
at  the  expense  of  women's  and  children's,  and  had  Garcia  Conde's  nature 
been  stern,  he,  too,  might  have  pleaded  expediency,  and  the  victory  would 
have  fallen  to  him  who  could  longest  have  sustained  the  sight  of  man- 
gled infants  and  despairing  mothers."  (Napier's  Peninsular  War,  book 
10,  chapt.  3,  vol.  2,  p.  56.) 

1.  Prize  Cases,  2  Black,  674;  2  Wallace,  419;    Woolsey,  sec.   123. 


8o  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

sentiments  and  dispositions.1  The  commander  who  is  endeavor- 
ing to  suppress  a  rebellion,  will,  so  far  as  it  can  wisely  be  done, 
distinguish  between  the  loyal  and  the  disloyal  citizen.  Sound 
policy  will  dictate  this  course  to  the  legitimate  government.  It 
is  in  consonance  with  the  preceding  opinions  of  the  Supreme 
Court  and  the  observance  of  the  principle  has  been  enjoined 
upon  the  United  States  armies  in  the  field.  "Justice  and  ex- 
pediency require  that  the  military  commander  protect  the 
manifestly  loyal  citizens,  in  revolted  territories,  against  the 
hardships  of  the  war  as  much  as  the  common  misfortune  of  all 
war  admits.  He  will  throw  the  burden  of  the  war,  as  much  as 
lies  within  his  power,  on  the  disloyal  citizens  of  the  revolted 
portion  or  province,  subjecting  them  to  a  stricter  police  than 
the  non-combatant  enemies  have  to  suffer  in  regular  war  ;  and 
if  he  deems  it  appropriate,  or  if  his  government  demands  of  him 
that  every  citizen  shall,  by  an  oath  of  allegiance,  or  by  some 
other  manifest  act,  declare  his  fidelity  to  the  legitimate  govern- 
ment, he  may  expel,  transfer,  imprison,  or  fine  the  revolted 
citizens  who  refuse  to  pledge  themselves  anew  as  citizens 
obedient  to  the  law  and  loyal  to  the  government.  Whether  it 
be  expedient  to  do  so,  and  whether  reliance  can  be  placed  upon 
such  oaths,  the  commander  or  his  government  have  the  right 
to  decide. ' ' 2  Distinctions  between  the  loyal  and  disloyal  of 
rebellious  districts  will  as  a  rule  be  regulated  through  the  leg- 
islative action  of  the  legitimate  government.  While  the  power 
to  carry  on  war  carries  with  it  every  incidental  power  nec- 
essary to  render  it  effective  sanctioned  by  the  law  of  nations,  it 
can  not  be  doubted  that  Congress  has  a  right  to  prescribe 
regulations  limiting  and  directing  the  discretion  of  the  Execu- 
tive.3 Such  regulations,  in  so  far  as  they  discriminate  between 
subjects  in  insurgent  territory,  generally  relate  to  property, 
appropriating  that  of  the  disloyal  while  so  far  as  practicable 
protecting  that  of  the  loyal  from  the  common  lot  of  war.4 

The  rule  that  certain  of  the  enemy's  subjects  are  to  be  treated 
as  non-combatants  gives  rise  to  the  correlative  duty  on  their  part 

i.  Ford  v.  Surget,  97  U.  S.,  604;  Williams  z;.  Bruffy,  96  U.  S.,  176; 
2  Black,  674.  2.  Instructions  for  Armies  in  the  Field,  sec.  10,  clauses  7,  8. 
3.  Brown  v.  U.  S.,  8  Cranch,  149.  4.  Act  August  6,  1861,  12  Statutes  at 
Large,  319;  July  17,  1862,  Ibid,  591  ;  March  12,  1863,  Ibid,  820. 


ALL   INHABITANTS    ENEMIES  ;    LEVIES    EN    MASSE.  8 1 

to  refrain  from  acts  of  hostility.1  This  obligation  is  enforced 
with  great  rigor  by  the  dominant  power.  Inhabitants  of  the 
country  militarily  occupied  are  not  permitted  to  make  war  as 
they  please,  being  soldiers  one  day  and  engaged  in  peaceful 
pursuits  the  next.  In  the  instructions  for  United  States  armies 
such  persons  are  called  war  rebels. 

In  1 87 1  the  German  governor  of  Lorraine  ordered,  in  conse- 
quence of  the  destruction  of  the  bridges  of  Fontenoy  on  the 
east  of  Toul,  that  the  district  included  in  the  governor-gen- 
eralship of  Lorraine  should  pay  an  extraordinary  contribution  of 
10,000,000  francs  by  way  of  fine,  and  announced  that  the  vil- 
lage of  Fontenoy  had  been  burned.  In  October,  1870,  the 
general  commanding  the  second  German  army  issued  a  procla- 
mation declaring  that  all  houses  or  villages  affording  shelter  to 
franc-tireurs  would  be  burned,  unless  the  mayor  of  the 
communes  informed  the  nearest  Prussian  officer  of  their  presence 

1.  Instructions  U.  S.  Army  in  Field,  sec.  4;  Bluutschli,  Laws  of  War,  1, 
sec.  134. 

Note. — After  the  capture  of  the  city  of  Atlanta,  Georgia,  in  1864,  by 
the  Union  forces,  the  Federal  commander  removed  the  citizens  from  that 
city. 

The  reason  for  this  extreme  step,  which,  however,  was  justified  by  the 
laws  of  war,  were  as  follows  : 

1.  All  the  houses  were  wanted  for  military  storage  and  occupation. 

2.  To  enable  a  contracted  line  of  defence  to  be  established,  which 
would  be  capable  of  defence  by  a  reasonable  force  ;  and  this  would  render 
destruction  of  exterior  dwelling  houses  necessary  beyond  this  proposed 
line. 

3.  The  town  was  a  fortified  place,  stubbornly  defended,  fairly  captured, 
giving  the  captor  extraordinary  belligerent  rights  regarding  it. 

4.  Keeping  the  people  in  the  city  would  necessitate  feeding  them,  soon 
thus  draining  conqueror's  commissariat. 

5.  The  people  within  would  be  keeping  up  correspondence  injurious  to 
Union  cause  with  those  without  the  city. 

6.  To  govern  the  people  would  take  too  large  a  portion  of  the  com- 
batant conquering  force. 

Every  precaution  was  taken  to  make  the  removal  of  the  people  as 
agreeable  to  them  as  possible.  They  were  given  transportation  for  them- 
selves and  a  reasonable  amount  of  personal  baggage,  and  they  were  care- 
fully guarded  until  they  were  placed  within  the  protective  power  of  the 
enemy's  forces,  which  co-operated,  under  protest,  in  the  proceeding. 
(Sherman's  Memoirs,  vol.  2,  p.  118.) 


SH^ 


82  MILITARY   GOVERNMENT  AND   MARTIAL,  LAW. 

immediately  on  their  arrival  in  the  communes.  All  communes 
in  which  injury  was  suffered  by  railways,  telegraphs,  bridges, 
or  canals  were  to  pay  a  special  contribution,  notwithstanding 
that  such  injury  might  have  been  done  by  others  than  the  in- 
habitants, and  even  without  their  knowledge. 

A  general  order  was  issued  in  August,  1870,  affecting  all 
territory  militarily  occupied  by  the  Germans,  under  which 
the  communes  to  which  any  persons  doing  a  punishable  act 
belonged,  as  well  as  those  in  which  the  act  was  carried  out, 
were  to  be  fined  for  each  offense  in  a  sum  equal  to  the  yearly 
amount  of  their  land  tax.1 

The  right  of  making  war,  as  before  remarked,  rests  with  the 
sovereign  power  of  the  State.  Subjects  can  not  take  any  in- 
dependent steps  in  the  matter.  They  are  not  permitted  to 
commit  acts  of  hostility  without  either  the  orders  or  approval 
of  their  government.2  If  they  assume  this  responsibility  they 
are  liable  to  be  treated  as  banditti. 

As  a  rule,  those  so  authorized  are  given  distinctive  uniforms, 
are  organized  into  military  bodies,  and  pass  under  the  designa- 
tion of  troops.  The  uniform,  however,  is  not  a  necessary  fea- 
ture, nor  is  a  particular  organization  even,  that  the  enemy's 
forces  shall  be  entitled  to  be  considered  legitimate.  Many  and 
sufficient  causes  may  prevent  the  wearing  any  distinctive 
uniform.  The  organization  of  the  forces  may  frequently 
change.  Neither  is  considered  a  matter  of  prime  importance, 
therefore,  in  determining  whether  the  enemy  are  entitled  to 
every  consideration  extended  to  combatants  under  the  laws  of 
war.  But  it  is  insisted  that  they  shall  be  regularly  authorized 
and  commissioned  by  their  government.  To  this  rule  no  ex- 
ception is  admitted.  And  the  necessity  of  a  special  order  to 
act  is  so  thoroughly  established  that,  even  after  a  declaration 
of  war  between  two  nations,  if  peasants  without  governmental 
sanction  commit  hostilities  the  enemy  shows  them  no  mercy, 
but  hangs  them  up  as  he  would  so  many  robbers.3 

It  is  a  well-established  military  principle  that  predatory  par- 
ties and  guerrilla  bands  are  not  legally  in  arms.  The  military 
name  and  garb  which  they  may  have  assumed  can  not  give 
exemption  to  the  crimes  which  they  commit  4 

1.  Hall,  p.  433.  2.  Woolsey,  5th  ed.,  sec.  125.  3.  Vattel,  book  111, 
ch.  15,  sec.  226.  4.  G.  O.  1,  Dept.  Mo.,  Jan.  1,  '62,  R.  R.  S.,  I,  vol.  8, 

p.  476  ;  Scott's  Autobiography,  p.  574  ;  Woolsey,  sections  134,  142. 


ALL    INHABITANTS    ENEMIES  J    LEVIES    EN    MASSE.  83 

Some  writers  have  indeed  expressed  views  which  if  not  at- 
tentively examined  might  lead  to  other  conclusions.  ' '  An 
armed  party,"  remarks  Bluntschli,  "which  has  not  been  em- 
powered by  any  existing  government  to  resort  to  arms,  is 
nevertheless  to  be  regarded  as  a  belligerent  when  it  is  organized 
as  an  independent  military  power,  and  in  the  place  of  the  State 
honorably  contends  for  a  principle  of  public  law."  But  ref- 
erence was  here  had  to  expeditions  of  certain  free-corps  having 
for  their  object  political  changes,  and  whose  operations  were 
like  those  of  regularly  organized  armies,  like  the  Germans  un- 
der Major  Schill  in  1809,  and  the  Italian  free-corps  with  which 
Garibaldi  invaded  Sicily  and  Naples  in  the  war  of  1859  and 
Tyrol  in  1866.  They  were  no  mere  predatory  bodies,  but  their 
numbers,  organization,  mode  of  fighting,  and  the  honorable 
objects  they  consistently  kept  in  view  entitled  them,  as  Dr. 
Bluntschli  contends,  to  be  treated  as  regular  belligerents.1 
Yet  it  is  well  known  that  Napoleon  treated  Van  Schill' s  party 
as  banditti,  making  war  without  proper  authorization. 

It  is  a  general  principle  of  modern  war  that  men  or  squads 
of  men  who  commit  hostilities,  whether  by  fighting  or  inroads, 
whether  for  destruction  or  plunder,  or  by  raids  of  any  kind 
without  being  part  and  portion  of  the  organized  hostile  army, 
and  without  sharing  continuously  in  the  war,  but  who  do  so  with 
intermitting  returns  to  their  homes  and  civil  avocations,  or  with 
the  occasional  assumption  of  the  semblance  of  peaceful  pursuits, 
divesting  themselves  of  the  character  and  appearance  of  sol- 
diers, are  not  public  enemies,  and  therefore,  if  captured,  are  not 
entitled  to  the  privileges  of  prisoners  of  war,  but  are  to  be 
treated  summarily.2  That  was  the  course  enjoined  upon  the 
Union  Army  during  the  Rebellion,  and  conformed  to  the 
practices  of  modern  war  generally.  The  French  pursued  that 
course  in  Spain.  Wellington  did  the  same  in  France,  while 
in  i87o-'i  the  Germans  adopted  the  most  stringent  measures 
against  the  French  franc-tireurs.  A  notice  at  St.  Michel  de- 
clared that  either  franc-tireurs  or  other  persons  bearing  arms 
but  not  wearing  uniforms,  so  as  to  distinguish  them  from  the 
civil  population,  were  by  the  Prussian  laws  of  war  punishable 
with  death.     The  policy  indicated  in  this  notice  was  general, 

1.  Bluntschli's  Laws  of  War,  I,  sec.  3. 

2.  Instructions  Armies  in  the  Field,  sec.  4,  clauses  2-4. 


84  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

and  was  enforced  with  unbending  severity.'  But  it  led,  during 
the  last  days  of  the  unequal  struggle  between  France  and 
Germany  in  1870-'  1,  after  the  regular  armies  of  the  former  were 
captured  or  nearly  dispersed  and  irregulars  were  largely  de- 
pended on,  to  melancholy  results.  General  Chanzy,  a  gallant 
French  officer,  wrote  to  the  German  commander  at  Vendome 
that  he  intended  to  fight  without  truce  or  mercy  because  the 
fighting  was  no  longer  with  legal  enemies  but  hordes  of  de- 
vastators. 

Nor  can  any  government  legalize  guerrilla  practices.  A  regu- 
larly granted  commission  can  not  render  such  lawful,  but  if 
captured  the  perpetrators  are  visited  with  the  summary  punish- 
ment due  their  crimes.  Their  commissions  would  not  shield 
them.  Those  commissions  only  authorize  acts  which  are 
justified  by  military  customs. 

States  sometimes  attempt  to  justify  subjects  who  make  war 
in  an  irregular  manner.  But  the  practice  is  inflexibly  con- 
demned by  modern  laws  of  war.  Not  because  those  so  engaged 
are  necessarily  bent  on  crimes  ;  on  the  contrary,  they  may  be 
actuated  by  the  most  patriotic  motives;  but  because  each  party 
has  a  right  to  know  who  his  enemy  is,  and  besides,  if  hostilities 
so  conducted  were  legalized,  a  too  convenient  cover  would  be 
furnished  for  all  kinds  of  excesses.  Under  the  customs  of  war, 
unless  the  troops  have  the  authority  of  their  State  to  act,  their 
appropriating  property  is  robbery,  their  taking  life  is  murder. 
Nor  does  the  civil-law  maxim  that  subsequent  ratification 
has  a  retrospective  effect,  and  is  equivalent  to  a  prior  com- 
mand, have  here  any  application.  The  authorization  must  be 
prior  in  point  of  time  to  the  hostile  acts,  otherwise  they  are 
crimes.  The  irresponsible  doings  of  unauthorized  bodies  can 
not  be  given  the  sanction  of  warfare  regularly  conducted.  To 
do  this  would  be  to  confound  all  distinctions  between  right  and 
wrong.  No  nation  can  afford  to  do  this  unless  it  has  resolved 
to  revert  to  the  practices  of  barbaric  ages.2 

In  the  Franco-German  war  of  i87o-'i,  the  German  com- 
mander-in-chief issued  a   proclamation  requiring  an  authori- 

1.  Customs  of  War,  Tovey,  p.  75. 

2.  Halleck,  ch.  16,  sec.  8 ;  Kent,  1,  pp.  94-'6  ;  Lieber's  Miscellaneous 
Writings,  vol.  2,  "  Guerrilla  Parties  ;  "  see  also  Dr.  Bluntschli,  Laws  of 
War,  V;  also  I,  sees.  6i,  61a. 


ALL   INHABITANTS   ENEMIES  ;    LEVIES   EN   MASSE.  85 

zation  for  each  individual.  "  Every  prisoner,"  it  was  said, 
' '  who  expects  to  be  treated  as  a  prisoner  of  war,  must  prove 
his  character  as  a  French  soldier  by  an  order  issued  by  the 
lawful  authorities  and  directed  to  him  showing  that  he  has 
been  called  out  and  incorporated  into  the  ranks  of  a  military 
corps  organized  by  the  French  government. ' ' 

An  important  distinction  is  made  between  hostile  acts  of 
guerrillas  and  of  levies  en  masse,  called  into  the  field  by  their 
government.1  The  leaders  of  the  latter,  as  a  rule,  are  regularly 
commissioned,  and  all  act  under  proper  authority.  Such  masses 
are  not  in  the  same  category  before  the  law  with  those  who 
self-authorized  presume  to  engage  in  hostilities.  It  is  true  that 
levies  en  masse  will  seldom  if  ever  be  uniformed;  this  might  be 
impracticable,  and  to  expect  it  might  be  unreasonable.  Their 
organization  may,  and  generally  will,  be  imperfect.  Yet  they 
have  that  in  their  favor  which  vitally  distinguishes  regulars 
from  irregulars,  namely,  the  previous  authorization  of  their  gov- 
ernment to  wage  war  by  recognized  methods.  So  long  as  they 
conduct  war  upon  proper  principles,  their  appearing  on  the  field 
is  not  a  just  cause  of  complaint.  On  the  contrary,  instead  of  sub- 
jecting themselves  to  pains  and  penalties  for  nobly  defending 
their  country's  rights  and  vindicating  her  honor,  they  will  de- 
serve and  receive  every  consideration  from  a  generous  foe.  But 
to  become  entitled  to  be  treated  thus,  levies  e?i  masse  must  con- 
duct hostilities  in  accordance  with  the  laws  of  war.  They  can 
not  be  soldiers  one  day,  the  next  be  engaged  in  the  peaceful  pur- 
suits of  life,  and  the  day  after  again  be  found  in  hostile  array. 
Such  conduct  will  inevitably  class  them  as  guerrillas  and  ban- 
ditti. It  will  forfeit  the  respect  with  which  the  enemy  may  have 
regarded  them,  and  call  down  upon  their  heads  a  well-merited 
vengeance.2 

The  part  which  levies  en  masse  must  act  is  full  of  difficul- 
ties. That  they  have  no  distinct  uniform,  no  firmly  settled 
organization,  no  system  of  supply,  whether  of  provisions, 
clothing,  arms  and  ammunition,  or  means  of  transportation, 
renders  it  extremely  difficult  for  them  long  successfully  to  keep 
the  field.  Yet  it  is  necessary  that  they  conform  in  their  military 
operations  to  the  well-recognized  practices  of  modern  warfare. 

1.  Hall,  pp.  474-' 77- 

2.  Bluutschli,  Laws  of  War,  I,  sec.  6. 


86  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

If  they  do  not,  they  are  in  no  wise  distinguishable  from  those 
irregulars  who  when  apprehended  may  be  summarily  dealt 
with.  And  this  renders  it  advisable  before  a  State  calls  out  its 
subjects  en  masse  to  consider  well  not  onty  the  hoped-for  advan- 
tages, but  also  the  possible  evil  results  which  may  follow  such 
a  proceeding.  If,  as  they  are  likely  to  do,  under  the  pressure 
of  sustained  effort,  the  levies  break  up,  disintegrate,  and  scatter 
into  disorganized,  illy-assorted  and  feebly-commanded  bands, 
demoralization  ensues,  love  of  plunder  indifferently  of  friend 
or  foe  supplants  the  promptings  of  patriotism,  the  war  becomes 
irregular  on  their  part,  forfeiting  to  them  the  protection  due  to 
their  former  character. 

Considerations  similar  to  these  no  doubt  led  the  elegant  and 
philosophic  Napier,  when  narrating  the  efforts  of  Spain  to  repel 
invaders  from  her  soil,  to  make  the  remark  that,  to  raise  a 
whole  people  against  an  invader  may  be  easy,  but  to  direct  the 
energy  thus  aroused  is  a  gigantic  task,  and,  if  misdirected,  the 
result  will  be  more  injurious  than  advantageous.  "That  it 
was  misdirected  in  Spain,"  continues  he,  "  was  the  opinion  of 
many  able  men  of  all  sides,  and  to  represent  it  otherwise  is  to 
make  history  give  false  lessons  to  posterity.  Portugal  was 
thrown  completely  into  the  hands  of  L,ord  Wellington  ;  but 
that  great  man,  instead  of  following  the  example  of  the 
supreme  junta  and  encouraging  independent  bands,  enforced 
military  organization  upon  totally  different  principles.  The 
people  were,  indeed,  called  upon  and  obliged  to  resist  the 
enemy,  but  it  was  under  a  regular  system  by  which  all  classes 
were  kept  in  just  bounds,  and  the  whole  physical  and  moral 
power  of  the  nation  rendered  subservient  to  the  plan  of  the 
general-in-chief. "  l 

It  is  when  levies  en  masse  are  scattered,  as  they  are  so  apt  soon 
to  be  through  inherent  weakness  due  to  want  of  proper  organ- 
ization and  supply  system,  that  habits  of  license,  violence,  and 
disrespect  for  rights  of  property  are  quickly  contracted,  and 
render  their  members  unfit  for  the  duties  of  citizens.  The  ef- 
forts of  disconnected  bands  avail  nothing  of  permanent  value 
to  the  State  in  the  face  of  a  regularly  organized  and  well 
directed  enemy  ;    while  their  members,  subsisting  by  force  off 

i.  Peninsular  War,  bk.  9,  ch.  1. 


ALL   INHABITANTS   ENEMIES  ;    LEVIES   EN   MASSE.  87 

the  resources  of  the  country,  strike  far  greater  terror  to  unarmed 
friends  than  to  the  armed  foe. 

The  requirement  that  levies  en  masse  or  soldiers  of  any  de- 
scription shall  wear  some  distinguishing  mark  of  dress  to  show 
that  they  are  combatants  can  never  be  enforced.1  Moreover,  it 
is  not  so  necessary  as  is  generally  thought.  This  was  demon- 
strated in  the  American  Civil  War  from  1 861-5.  The  rebels 
had  a  uniform,  prescribed  by  their  regulations,  but  circum- 
stances did  not  permit  of  its  being  worn  except  by  an  individ- 
ual here  and  there.  The  great  body  of  the  rebel  armies — hun- 
dreds of  thousands — were  dressed  in  any  way  that  was 
convenient.  The  only  distinctive  feature  that  could  be  said  to 
characterize  their  clothing  was  that  the  general  effect  was  a 
peculiar  shade  of  brown  familiarly  known  as  ' '  butternut. ' ' 
This  want  of  distinctive  uniform  was  often  the  cause  of  mis- 
takes being  made  by  members  of  the  opposing  forces  of  a  more 
or  less  serious  nature  ;  but  as  it  was  a  recognized  fact  that  the 
rebel  government  could  not  clothe  its  troops  any  better,  the 
Federal  commanders  soon  ceased  to  expect  it.  As  a  result  a 
particular  style  of  clothing,  or  special  mark  apparent  in  the 
soldiers'  garb,  was  no  longer  a  test  as  to  whether  they  were  en- 
titled to  be  treated  as  combatants.  If  they  were  acting  under 
competent  authority  and  observed  the  customary  laws  of  war,  it 

1.   Bluntschli,  Laws  of  War,  I,  sec.  61. 

Note. — An  incident  in  the  experience  of  the  writer  during  the  expul- 
sion of  the  rebel  general,  Price,  from  Missouri  in  1864,  so  well  illustrates 
this  fact  that  he  may  perhaps  be  pardoned  for  referring  to  it  here.  On 
one  occasion,  after  a  cavalry  charge,  he  found  himself  in  some  way  sepa- 
rated from  his  command.  Those  who  have  witnessed  such  contests  know 
how  scattered  the  opposing  forces  sometimes  become.  Joining  the  first 
company  of  cavalry  which  came  along  he  accompanied  it  for  some  dis- 
tance, chatting  with  its  members ;  no  suspicion  at  that  time  entered  his 
mind  that  they  were  Confederates.  Their  dress,  to  be  sure,  was  of  the 
half-and-half  style  above  described,  but  so  was  his  own,  and  this  was  so 
common  a  circumstance  in  portions  of  the  Union  army  there  that  it 
excited  no  comment.  At  last  the  evident  intention  of  the  strangers  to 
join  the  enemy's  reformed  line  of  battle,  in  plain  view  at  a  distance, 
excited  his  mistrust  that  he  was  in  the  power  of  the  enemy.  Without 
showing  his  apprehensions  he  stopped  on  some  trivial  pretext,  and  the 
cavalry  passed  straight  on  to  the  enemy's  line  apparently  giving  no 
thought  to  his  real  character. 


88  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

was  sufficient ;  to  have  attempted  to  punish  them  for  not  being 
distinguished  by  some  mark  of  dress  would  only  have  resulted 
in  wholesale  retaliations.  Nor  was  this  want  of  uniform  in  all 
cases  confined  to  the  rebel  armies.  In  some  instances  the 
Federal  troops,  particularly  the  cavalry,  at  the  end  of  a  cam- 
paign, with  less  excuse  than  their  antagonists,  presented  an 
appearance  little  if  any  better  than  the  latter.  In  many  cases 
the  original  uniform  would  be  wholly  gone,  and  its  place  sup- 
plied by  garments  of  any  hue  picked  up  at  random  ;  while 
nothing  was  more  common  on  such  occasions  than  to  have  the 
so-called  uniform  pieced  out  half  by  rebel  ' '  butternut ' '  and 
half  the  "union  blue."  This  was  particularly  so  in  the 
western  field  of  operations.  If  the  enemy  had  been  so  fortunate 
as  to  raid  a  union  clothing  depot  they  would  be  similarly 
decked  out ;  when  this  occurred  it  was  sometimes  difficult  to 
distinguish  friend  from  foe. 

There  is  no  impropriety  in  a  State,  if  it  so  desires,  relying 
for  its  fighting  force  upon  the  precarious  services  of  levies  en 
masse  rather  than  regularly  organized  armies.1  That  such  State 
is  thereby  a  loser  is  not  a  rational  nor  is  it  apt  to  be  an  actual 
cause  of  complaint  to  its  enemy.  The  adoption  of  this  policy 
is  purely  a  matter  for  each  State  to  determine  for  itself.  It  is 
true  that  it  is  sometimes  claimed  that  the  employment  of  such 
levies  is  contrary  to  the  laws  of  war.  But  if  these  assertions 
be  examined  into  it  will  be  found  that  those  who  maintain  this 
position  are  actuated  by  no  higher  motive  than  self-interest. 
They  are  those  who  support  large  standing  armies,  train  the 
entire  able-bodied  male  population  for  war,  and  have  a  system 
of  mobilization  worked  out  practically  during  peace  whereby 
the  regularly  organized  armies,  embodying  the  whole  armed 
strength  of  the  nation,  can  quickly  be  placed  in  the  field  in 
time  of  war.  This  is  the  policy  of  the  more  important  States 
of  continental  Europe.  With  them  levies  en  masse  are  not 
favored.  And  yet  France  in  1814,  and  again  in  1871,  resorted 
to  them  ;  as  in  fact  every  people  of  spirit  would  always  do  in 
the  last  extremity.  On  the  other  hand,  those  States  will  be 
found  to  maintain  the  right  to  levy  such  masses  which  have 

1.  Bluntschli,  Laws  of  War,  I,  par.  89  ;  Instructions,  Armies  in  Field, 
section  3,  pars.  4,  5. 


ALL   INHABITANTS   ENEMIES  :    LEVIES    EN    MASSE.  89 

small  standing  armies  or  have  not  adopted  the  principle  of 
universal  service  in  the  ranks.  These  States  are  far  the  more 
numerous  of  the  two  classes,  and  embrace  all  nations  except 
those  of  Central  Europe.  It  will  not  be  denied  that  it  is  to  the 
interest  of  States  with  small  standing  armies  to  maintain  the 
legality  of  levies  en  masse.  If  attention  is  confined,  therefore, 
to  this  narrow  view  of  the  subject,  these  States  have  no  advan- 
tage in  the  argument  over  those  who  maintain  the  opposite 
opinion,  for  each  looks  no  further  than  personal  interest.  But 
those  who  support  the  affirmative  of  the  question  have,  in  ad- 
dition to  self-interest,  this  cogent  circumstance  in  their  favor, 
namely:  the  fact  that  every  military  nation,  large  and  small 
alike,  when  driven  to  extremities,  resorts  to  levies  en  masse  to 
defend  the  homes  and  firesides  of  its  people,  if  expediency 
prompts  the  measure. 

Under  these  circumstances  no  nation  has  hesitated  to  resort 
to  levies  from  conscientious  scruples.  And  on  principle,  the 
right  to  employ  levies  en  masse  can  not  successfully  be  contro- 
verted. No  independent  State,  unless  it  be  agreeable  to  itself, 
is  obliged  to  keep  one  soldier  in  its  employ.  Its  military 
system  is  a  matter  of  internal  policy.  Its  military  force  may 
be  regulars  or  militia,  or  any  other  the  State  may  deem  to  be 
proper.  It  is  true  that,  under  the  pressure  of  external  circum- 
stances, as  for  instance,  considerations  affecting  the  balance  of 
power  among  nations,  a  State  may  be  compelled  to  enter  into 
engagements  which  curtail  her  natural  freedom  of  action  re- 
garding the  character  and  number  of  her  military  forces.  But 
we  speak  now  of  her  rights  as  an  independent  State  among  the 
nations  of  the  earth.  As  such  she  has  a  right  to  determine  for 
herself  what  her  military  force  shall  be.  She  is  answerable  to 
other  nations  only  to  this  extent,  that  when  this  force  takes  the 
field  it  shall  carry  on  hostilities  according  to  the  laws  of  war. 

In  arriving  at  a  solution  of  the  problem  as  to  the  character  of 
its  military  force,  the  geographical  position  of  the  State  and 
the  military  policy  of  its  neighbors  are  circumstances  of  the 
greatest  importance.1  Self-preservation  is  the  first  law  of  nature 
with  States  as  with  individuals.  Each  State  adopts  those 
measures  of  self-defence  which,  depending  upon  its  situation 
and  the  character  of  its  own  and  of  neighboring  people,  are 

1.  2  Wheaton,  part  2,  sec.  63. 


90  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

best  calculated  to  preserve  its  integrity  unimpaired.  The  ques- 
tion is  how  best  to  secure  the  safety  of  the  State  ;  each  deter- 
mines the  question  for  itself.  If  it  choose,  in  the  first  instance, 
to  rely  upon  the  efforts  of  a  small  standing  army,  supported  by 
militia  or  volunteers,  and  ultimately  upon  levies  en  masse,  it  is 
its  own  concern.  The  right  to  adopt  this  policy  is  perfect.  Its 
expediency  is  another  question.  In  determining  upon  this  the 
great  difficulty  of  directing  the  fighting  power  of  such  masses 
with  coherency  and  effect;  the  impossibility  of  making  a  pro- 
longed effort  with  them  ;  the  embarrassment  ever  attending 
their  supply  and  transportation  ;  the  danger  of  their  melt- 
ing awa}',  becoming  mere  marauders  at  a  time  when  they 
are  most  needed,  more  dangerous  to  friends  than  foes, —  are  con- 
siderations not  to  be  lost  sight  of  by  a  State  which  depends 
upon  levies  en  masse  to  sustain  its  honor,  vindicate  its  rights, 
and  redress  its  wrongs. 

With  regard  to  employment  of  levies  en  masse  it  may  be  said, 
after  a  most  interesting  and  intelligent  discussion  of  the  subject 
since  1870,  particularly  at  various  conferences  of  learned  bodies 
in  Europe  versed  in  the  laws  of  war,  that  general  opinion  there 
expressed  tends  to  maintain  these  propositions  :  (1)  that  in 
order  to  insure  treatment  as  belligerents,  irregular  troops  must 
wear  some  distinguishing  mark  ;  (2)  that  they  must  be  com- 
manded by  officers  who  are  commissioned  by  their  government  ; 
(3)  they  must  observe  the  laws  of  war.1  Upon  this  point  the 
American  instructions  are  as  follows  (sec.  3,  par.  4,  5)  : 

"  If  the  people  of  that  portion  of  an  invaded  country  which 
is  not  yet  occupied  by  the  enemy,  or  of  the  whole  country,  at 
the  approach  of  a  hostile  army,  rise,  under  a  duly  authorized 
levy,  en  masse  to  resist  the  invader,  they  are  now  treated  as 
public  enemies,  and,  if  captured,  are  prisoners  of  war. 

' '  No  belligerent  has  the  right  to  declare  that  he  will  treat 
every  captured  man  in  arms  of  a  levy  en  masse  as  a  brigand  or 
bandit. 

"  If,  however,  the  people  of  a  country,  or  any  portion  of  the 
same  already  occupied  by  an  army,  rise  against  it,  they  are 
violators  of  the  laws  of  war,  and  are  not  entitled  to  their  pro- 
tection." 

1.  Manning,  p.  207,  Amos'  note      Maine,  pp.   i6S-'76;  Hall,  pp.  474-'7  ; 
Bluutschli,  t,  sec.  132. 


LAWS   OBLIGATORY    WITHIN    OCCUPIKD    TERRITORY. 


CHAPTER   IX. 

LAWS   OBLIGATORY    WITHIN   OCCUPIED    TERRITORY. 

As  territory  subject  to  military  government  forms  no  part  of 
the  national  domain  unless  by  conquest,  treaty,  or  appropriate 
legislation  it  becomes  such,  it  follows  that  the  laws  of  the 
United  States,  of  their  own  force  and  rigor,  do  not  extend  over 
that  territory.'  Nor,  by  the  law  of  nations,  is  either  the  civil 
or  criminal  jurisdiction  of  the  conquering  State  considered  as 
extending  over  such  territory.  Jurisdiction  of  the  vanquished 
power  is  indeed  replaced  by  that  of  military  occupation,2  but  it 
by  no  means  follows  that  this  new  jurisdiction  is  the  same  as 
that  of  the  conquering  State.  It  is  usually  very  different  in  its 
character  and  always  distinct  in  its  origin.  Hence  the  ordi- 
nary jurisdiction  of  the  dominant  State  does  not  extend  to 
actions,  whether  civil  or  criminal,  originating  in  the  occupied 
territory.  As  remarked  upon  one  occasion  by  the  Supreme 
Court  of  the  United  States  :  What  is  the  law  which  governs 
an  army  invading  an  enemy's  country?  It  is  not  the  civil 
law  of  the  invaded  country  ;  it  is  not  the  civil  law  of  the  con- 
quering country  ;  it  is  military  law,  the  law  of  war,  and  its 
supremacy  for  the  protection  of  the  officers  and  soldiers  of  the 
army  when  in  service  in  the  field  in  the  enemy's  country  is  as 
essential  to  the  efficiency  of  the  army  as  the  supremacy  of  the 
civil  law  at  home,  and,  in  time  of  peace,  is  essential  to  the 
preservation  of  liberty.3  "  In  the  event  of  a  military  occupa- 
tion," said  Maine,  "  the  authority  of  the  regular  government 
is  supplanted  by  that  of  the  invading  army.  The  rule  imposed 
by  the  invader  is  the  law  of  war.  It  may  in  its  character  be 
either  civil  or  military,  or  partly  one  and  partly  the  other. 
The  rule  of  military  occupation  has  relation  only  to  the  in- 
habitants of  the  invaded  country."  4 

It  is  well  settled  that  a  foreign  army  permitted  to  march 
through  a  friendly  country,  or  to  be  stationed  in  it,  by  permis- 

i.  5.  Opinions  Attorneys-General,  58  ;  9  Opinions  Attorneys-General,  140. 

2.  Maine,  p.  179.  3.  Dow  v.  Johnson,  100  U.  S.,  p.  170. 

4.  Maine,  p.  179. 


92  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

sion  of  its  government  or  sovereign,  is  exempt  from  the  civil 
and  criminal  jurisdiction  of  the  place.1  So  much  the  more 
would  an  army  invading  an  enemy's  country  be  exempt  from 
the  jurisdiction  of  the  latter.'2  On  the  other  hand  military 
government  does  not  permanently  oust  the  jurisdiction  of  the 
vanquished  and  ipso  facto  substitute  the  national  jurisdiction  of 
the  occupying  State.  Such  an  effect  is  produced  only  by  incor- 
poration or  definitive  occupation.  We  refer  here  only  to  the 
jurisdiction  of  common  law  and  the  ordinary  and  usual 
cognizance  of  cases  without  in  any  manner  diminishing  the 
rights  derived  from  war  and  the  measures  necessary  for  the 
government  of  military  occupation.  In  this  respect  there  is 
no  difference  between  a  war  in  which  the  contending  parties  are 
independent  nations  and  a  war  waged  against  rebels  treated  as 
belligerents.3  For  when  a  nation  becomes  divided  into  two 
parties  absolutely  independent  and  no  longer  acknowledging  a 
common  superior,  the  war  between  the  parties  stands  on  the 
same  ground,  in  every  respect,  as  a  public  war  between  two 
different  nations. 

The  question  here  arises  :  what  laws  are  obligatory  upon  the 
authorities  enforcing  military  government?  Broadly,  the  an- 
swer must  be  in  the  language  just  quoted  of  the  Supreme  Court, 
"the  laws  of  war."  But  practically  the  subject  admits  of 
more  precise  determination.  The  military  commander,  under 
military  government,  will  deal  with  three  classes  of  cases  : 
First,  those  affecting  the  persons  and  property  of  the  conquered, 
determining  their  rights,  duties,  and  obligations  ;  second,  those 
which  concern,  in  a  similar  manner,  citizens  of  the  conquering 
State,  either  soldiers  or  others  within  the  district  occupied  ; 
third,  those  which  affect  citizens  of  neutral  States  similarly 
situated.  The  laws  which  control  in  dealing  with  the  first  and 
last  classes  are  those  of  war,  absolutely  ;  but,  as  to  the  second, 
the  rule,  upon  examination,  will  be  found  to  be  somewhat 
different. 

As  to  the  first  class  :  It  has  been  shown  that  retention  of 
local  laws,  for  the  adjudication  of  local  affairs  in  the  subjugated 
district,  is  a  matter  within  the  discretion  entirely  of  the  con- 

i.  The  Exchange,  7  Cranch,  139.  2.  Coleman  v.  Teun.,  97  U.  S.,  516. 

3.  97  U.  S.,  5i6-'7  ;  ico  U.  S.,  170. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED    TERRITORY.         93 

queror.1  It  is  his  act  of  grace.  The  rule  is  convenient  as  well. 
It  would  be  productive  of  the  greatest  confusion  if  a  commun- 
ity who  had  been  governed  by  one  law  should  have  that  law, 
with  which  they  are  acquainted,  suddenly  changed  for  another 
of  which  they  are  totally  ignorant,  as  well  as  of  the  tribunals 
which  are  to  administer  justice  among  them.  They  may  be 
permitted,  therefore,  to  preserve  their  laws  and  institutions  for 
the  time,  subject  to  modification  at  the  will  of  the  conqueror. 
This  is  a  great  amelioration  of  the  former  rule.  By  the  severe 
practices  of  war,  as  carried  on  in  ancient  and  indeed  far  down 
into  modern  times,  the  vanquished  had  no  rights  as  against 
the  victorious  enemy.  But  under  the  softening  influences  of 
Christianity  and  an  advancing  civilization,  these  stern  laws  of 
man  in  his  natural  and  primitive  state  have  been  greatly  modi- 
fied. These  modifications  are  elastic  and  their  practical  applica- 
tion characterized  by  more  or  less  severity,  but  in  their  general 
effect  they  are  regarded  as  obligatory  upon  commanding  generals 
in  the  exercise  of  belligerent  rights.  For  their  observance  the 
generals  are  answerable  to  their  government,  and  the  latter  to 
the  family  of  nations. 

1.  Kimball  v.  Taylor,  Wood's  Reports,  2d  La.  Dist.  ;   G.  O.  100,  A.  G.  O  , 
1863,  sec.  2,  clause  17. 

NOTE. — It  has  been  asserted  that  the  authority  of  the  local,  civil,  aud 
judicial  admiuistratiou  is  suspeuded,  as  of  course,  so  soon  as  military  occu- 
pation takes  place,  although  it  is  not  usual  for  the  invader  to  take  the 
whole  administration  iuto  his  own  hands.  The  latter  branch  of  the  rule 
doubtless  conforms  to  general  experience,  but  the  former  it  is  believed 
does  not.  So  far  from  the  local,  civil,  and  judicial  administration  being 
suspended,  as  matter  of  course,  upon  the  assumption  of  control  by  the 
military  authorities  of  the  invader,  they  continue,  if  they  so  elect,  in  the 
full  execution  of  their  duties  unless  the  conqueror  by  some  positive  act 
notifies  them  to  the  contrary,  or  in  some  unmistakable  manner  gathers 
the  authority  into  his  own  hands.  Upon  this  point  the  American  instruc- 
tions provide : 

"All  civil  aud  penal  law  shall  continue  to  take  its  usual  course  in  the 
enemy's  places  and  territories  under  martial  law  [military  government], 
unless  interrupted  or  stopped  by  order  of  the  occupying  military  power  ; 
but  all  the  functions  of  the  hostile  government — legislative,  executive,  or 
administrative — whether  of  a  general,  provincial,  or  local  character,  cease 
under  martial  law,  or  continue  only  with  the  sanction,  or,  if  deemed 
necessary,  the  participation  of  the  occupier  or  invader."     (Sec.  1,  par.  6.) 


94  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

Ostensibly,  at  least,  war  is  entered  upon  either  to  obtain  jus- 
tice from  an  independent  power  or  to  enforce  national  supremacy 
against  rebels.  War  existing,  each  belligerent  has  a  right,  as 
against  the  other,  to  do  whatever  he  finds  necessary  to  the  at- 
tainment of  the  end  he  has  in  view.  He  has  a  right  to  put  in 
practice  every  measure  that  is  necessary  in  order  to  weaken  the 
enemy,  and  may  choose  the  most  efficacious  means  to  accom- 
plish this  purpose.  But,  while  strictly  pursuing  this  course, 
he  should  listen  to  the  voice  of  mercy.  The  lawfulness  of  the 
end,  and  the  right  to  the  necessary  means  to  attain  it,  do  not, 
in  the  modern  view,  give  the  conqueror  a  right  to  abuse  his 
power.  Right  goes  hand  in  hand  with  necessity  and  the  exi- 
gency of  the  case  but  never  outstrips  them. 

To  this  effect  are  the  American  Instructions:  "Martial 
law  "  [military  government],  it  is  therein  stated,  "in  a  hostile 
country  consists  in  the  suspension,  by  the  occupying  military 
authority,  of  the  criminal  and  civil  law,  and  of  the  domestic 
administration  and  government  in  the  occupied  place  or  terri- 
tory, and  in  the  substitution  of  military  rule  and  force  for  the 
same,  as  well  as  in  the  dictation  of  general  laws,  as  far  as  mili- 
tary necessity  requires  this  suspension,  substitution,  or  dicta- 
tion. 

"The  commander  of  the  forces  may  proclaim  that  the  ad- 
ministration of  all  civil  and  penal  law  shall  continue,  either 
wholly  or  in  part,  as  in  times  of  peace,  unless  otherwise  or- 
dered by  the  military  authorities.1 

"  On  occupying  a  country  an  invader,"  says  Hall,  "  at  once 
invests  himself  with  absolute  authority,  and  the  fact  of  occu- 
pation draws  with  it,  as  of  course,  the  substitution  of  his  will 
for  previously  existing  law  whenever  such  substitution  is 
reasonably  needed,  and  also  the  replacement  of  the  actual  civil 
and  judicial  administration  by  military  jurisdiction.  In  its 
exercise,  however,  this  ultimate  authority  is  governed  by  the 
condition  that  the  invader,  having  only  a  right  to  such  con- 
trol as  is  necessary  for  his  safety  and  the  success  of  his  opera- 
tions, must  use  his  power  within  the  limits  defined  by  the 
fundamental  notice  of  occupation,  and  with  due  reference  to  its 
transient  character.     He  is  therefore  forbidden  as  a  general 

I.  Section  i,  par.  3. 


LAWS   OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.         95 

rule  to  vary  or  suspend  laws  affecting  property  and  private 
personal  relations,  or  which  regulate  the  moral  order  of  the 
community."  1 

The  word  ' '  forbidden  ' '  here  used  can  probably  only  mean 
that  the  invader  is  under  moral  obligations.  His  superiors 
alone  have  authority  to  forbid  his  doing  anything. 

And  not  only  the  laws  but  the  courts  for  administering  them 
are  such  as  the  conqueror  may  elect.  They  may  be  either  the 
ordinary  civil  courts  of  the  land,  or  war  courts,  generally  styled 
in  the  United  States  service,  military  commissions  and  provost 
courts.  "  The  most  important  power  exercised  by  an  invader 
occupying  a  territory,"  says  Maine,  "is  that  of  punishing,  in 
such  manner  as  he  thinks  expedient,  the  inhabitants  guilty 
of  breaking  the  rules  laid  down  by  him  for  securing  the  safety 
of  the  army.  The  right  of  inflicting  such  punishment  in  case 
of  necessity  is  undoubted  ;  but  the  interests  of  the  invader,  no 
less  than  the  dictates  of  humanity,  demand  that  inhabitants  who 
have  been  guilty  of  an  act  which  is  only  a  crime  in  consequence 
of  its  being  injurious  to  the  enemy,  should  be  treated  with  the 
greatest  leniency  consistent  with  the  safety  and  well-being  of 
the  invading  army."  2 

When  New  Mexico  was  occupied  by  United  States  forces  in 
1846,  there  was  established  a  judicial  system,  consisting  of  an 
appellate  court  constituted  of  three  judges  appointed  by  the 
President,  and  circuit  courts,  in  which  the  laws  were  to  be  ad- 
ministered by  the  judges  of  the  superior  or  appellate  court  in 
the  circuits  to  which  they  should  be  respectively  assigned. 

The  jurisdiction  of  the  courts  extended,  first,  to  all  criminal 
cases  that  should  not  otherwise  be  provided  for  bylaw  ;  second, 
exclusive  original  jurisdiction  in  all  civil  cases  which  should 
not  be  cognizable  before  the  prefects  and  alcaldes.  Of  the 
validity  of  these  arrangements  no  question  was  ever  raised 
during  the  period  that  the  territory  was  held  by  the  United 
States  as  conqueror.  It  would  seem  to  admit  of  no  doubt  but 
that  during  the  period  of  its  existence  and  operation  this 
judicial  system  must  legally  have  displaced  and  superseded 
every  previous  institution  of  the  vanquished  or  deposed  political 
power  which  was  incompatible   therewith.3      The   validity  of 

1.  International  Law,  p.  431.  2.  Page  180.  3.  20  How.,  178. 


96  MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 

the  judgments  of  these  courts  has  been  sustained  by  the  Su- 
preme Court  of  the  United  States.1 — the  principle  upon  which 
the  latter  court  proceeded  being  that  an  order  given  in  accord- 
ance with  the  laws  of  war,  by  virtue  of  the  conqueror's  right  to 
be  obeyed,  should  have  the  effect  of  law  as  to  acts  done  under 
his  authority  while  still  in  force.'2 

Wherever  the  armies  of  General  Scott  operated  in  Mexico 
during  the  same  war  there  was  not  permitted  the  least  in- 
terference with  the  administration  of  justice  between  native 
parties  before  the  ordinary  courts  of  the  country.  Trial  of  of- 
fences, one  party  being  Mexican  and  the  other  American,  was 
referred  to  military  commissions,  appointed,  governed,  and 
limited,  as  nearly  as  practicable,  in  accordance  with  the  law 
governing  courts-martial  in  the  United  States  service.  The 
proceedings  were  recorded,  reviewed,  approved,  or  disapproved 
and  the  sentences  executed  like  in  cases  of  courts-martial.  But 
no  military  commission  was  authorized  to  try  any  case  clearly 
cognizable  under  the  law  by  such  courts.  Further,  no  sentence 
of  a  military  commission  was  permitted  to  be  put  in  execution 
against  any  individual  belonging  to  the  American  army  which 
was  not,  according  to  the  nature  and  degree  of  the  offence  as 
established  by  evidence,  in  conformity  with  known  punish- 
ments in  like  cases  in  some  one  of  the  States  of  the  United 
States.  In  so  far  as  inhabitants  of  Mexico,  sojourners  and 
travelers  therein,  were  concerned,  the  other  parties  to  the  trial 
being  American,  cognizance  of  causes  by  military  commissions 
was  confined  to  crimes  known  to  the  municipal  laws  of  the 
States  of  the  Union  and  to  the  unlawful  acquirement  of  United 
States  property  from  members  of  the  invading  army.  A  cer- 
tain kind  of  political  offence  affecting  only  inhabitants  of  the 
country  was  also  made  triable  by  military  tribunals,  viz. :  where 
prosecutions  had  been  commenced  before  the  civil  courts  of 
Mexico  against  members  of  the  community  on  the  allegation 
that  they  had  given  friendly  information,  aid,  or  assistance  to 
the  American  forces,  their  prosecutors,  when  they  could  be  ap- 
prehended, were  brought  before  military  commissions.3 

The  policy  here  adopted  by  the  American  general  worked 
like  a  charm.     It  won  over  the  Mexicans  by  appealing  to  their 

i.  16  Howard,  164.  2.  Hare's  Amer.  Const.  L,aw,  vol.  2,  p.  945. 

3.  Appendix,  I. 


LAWS    OBLIGATORY   WITHIN    OCCUPIED    TERRITORY.         97 

self-interest,  intimidated  the  vicious  of  the  several  races,  and, 
being  enforced  with  impartial  rigor,  gave  high  moral  deport- 
ment and  discipline  to  the  invading  army.  The  penetration  of 
that  army  into  the  heart  of  the  enemy's  country,  when  we  con- 
sider its  small  numbers  and  the  resistance  it  encountered  due  to 
the  numerical  strength  of  the  opposing  army,  the  great  natural 
and  artificial  obstacles  to  be  overcome,  and  the  dictating  a  peace 
from  his  captured  capital,  challenges  admiration  as  a  great 
military  achievement.  But  we  have  the  evidence  of  the  com- 
mander himself  that  valor  and  professional  science  could  not 
alone  have  accomplished  all  this  with  double  the  number  of 
troops,  in  double  the  time,  and  with  double  the  loss  of  life, 
without  the  adoption  and  carrying  into  execution  these  and 
other  similar  measures  at  once  deterrent  of  crime  in  all  classes 
and  conciliating  to  the  people  conquered.1 

1.  Scott's  Autobiography,  2,  p.  540  ;  Appendix,  III. 

Note. — We  are  informed  by  General  Scott  (Autobiography,  vol.  2,  p. 
392),  that  he  was  prompted,  in  the  first  instance,  to  draft  the  afterwards 
famous  "Martial  Law"  order  (see  appendix,  1),  before  he  left  Washing- 
ton for  the  scene  of  hostilities,  upon  receipt  of  information  from  General 
Taylor,  commanding  in  Mexico,  that  the  "  wild  volunteers  as  soon  as  be- 
yond the  Rio  Grande  committed  with  impunity  all  sorts  of  atrocities  on 
the  persons  and  property  of  Mexicans,  and  that  one  of  the  former  from  a 
concealed  position  had  even  shot  a  Mexican  as  he  marched  out  of  Mon- 
terey under  the  capitulation."  He  submitted  the  draft  of  the  order  to  the 
War  Department  as  a  proper  one  to  be  promulgated  by  the  general  then 
commanding  in  Mexico  to  meet  the  case  of  such  crimes.  But  it  was 
silently  returned  to  him  as  "too  explosive  for  safe  handling."  Since 
those  days  the  United  States  authorities  have  learned  a  great  deal  as  to 
the  rights  of  military  commanders  operating  in  enemy  country. 

There  was  no  reason  why  crimes  occurring  in  Mexico  in  violation  of  the 
laws  of  war,  such  as  perpetrated  by  guerrillas,  banditti,  and  other  irregular 
bodies  of  the  enemy,  should  not  have  been  referred  to  military  commis- 
sions for  trial,  except  that  General  Scott,  in  enumerating  the  offences 
that  commissions  could  take  cognizance  of,  did  not  mention  such  crimes. 
To  meet  these  cases,  of  frequent  occurrence,  after  the  city  of  Mexico  was 
captured,  and  the  enemy,  driven  from  the  field  and  almost  dispersed,  en- 
couraged marauding  and  predatory  warfare  of  small  parties  on  the 
lines  of  communication  and  detached  posts  of  the  American  army,  Gen- 
eral Scott  organized  what  were  called  councils  of  war,  composed  of  not 
less  than  three  officers.  There  was  no  necessity  for  the  two  kinds  of 
courts,  namely,  councils  of  war  and  military  commissions.      Each  was 


98  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

Thus  far  reference  has  been  made  only  to  courts  and  systems 
of  judicature  organized  during  military  occupation  of  territory 
outside  the  boundaries  of  the  United  States.  The  same  rules 
govern  within  territory  wrested  from  rebels  treated  as  belliger- 
ents. The  decisions  of  the  Supreme  Court  of  the  United  States 
have  dispelled  whatever  doubts  at  one  time  existed  on  this  sub- 
ject. That  they  should  have  existed  is  not  surprising  when 
we  recall  the  belief,  long  inculcated,  that  the  Federal  govern- 
ment, however  strong  in  conflict  with  a  foreign  foe,  lay  man- 
acled by  the  Constitution  and  helpless  at  the  feet  of  a  domestic 
enemy.1  The  constitutional  right  of  Congress  and  the  Exec- 
utive Department  to  adopt  ordinary  war  measures  for  sup- 
pressing rebellion,  under  the  circumstances  here  mentioned, 
was  repeatedly  affirmed.  The  war  powers  of  the  government 
and  its  agents  were  pronounced  equal  to  the  emergency  ;  and 
among  others  the  power  to  institute  courts,  with  both  civil  and 
criminal  jurisdiction,  and  military  commissions.2 

"Although,"  said  the  Supreme  Court  in  New  Orleans  v. 
Steamship  Company,  "the  city  of  New  Orleans  was  conquered 
and  taken  possession  of  in  a  civil  war  waged  on  the  part  of  the 
United  States  to  put  down  an  insurrection  and  restore  the  su- 
premacy of  the  National  Government  in  the  Confederate  States, 
that  government  had  the  same  power  and  right  in  the  territory 
held  by  conquest  as  if  the  territory  had  belonged  to  a  foreign 
country,  and  had  been  subjugated  in  a  foreign  war.     In  such 

sufficient,  had  the  commander  but  invested  it  with  requisite  powers,  for 
the  trial  of  all  cases  brought  before  both.  There  was  this  positive  dis- 
advantage in  having  both,  that  thereby  confusion  resulted  when  the 
character  of  the  offences  was  such  as  made  it  questionable  which  court 
properly  could  assume  jurisdiction.  This  could  have  been  avoided  by 
having  one  style  of  war  court  take  cognizance  of  all  offences  not  triable 
by  courts-martial  or  the  civil  courts  of  the  land.  We  have  profited  by  this 
experience.  The  council  of  war  has  dropped  out  of  use  in  the  United 
States  ;  military  commissions  have  since  performed  the  duties  formerly 
devolving  on  both,  and,  as  the  only  recognized  war  court,  has  received 
on  an  exteusive  field  and  in  a  vast  variety  of  cases  the  sanction  not  only 
of  executive  but  of  legislative  and  judicial  authority. 

i.  ii  Wallace,  331. 

2.  100  U.  S.,  159;  9  Wallace,  133;  22  Ibid.,  294;  20  Wallace,  393;  12 
Wallace,  173  ;  see  R.  R.  S.,  I,  vol.  12,  part  1,  p.  52,  for  Gen.  McDowell's 
stringent  military  commission  order. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.         99 

cases  the  conquering  power  has  a  right  to  displace  the  pre- 
existing authority,  and  to  assume  to  such  extent  as  may  be 
deemed  proper  the  exercise  by  itself  of  all  the  powers  and  func- 
tions of  government.  It  may  appoint  all  the  necessary  officers 
and  clothe  them  with  designated  powers,  larger  or  smaller,  ac- 
cording to  its  pleasure.  It  may  prescribe  the  revenues  to  be 
paid  and  apply  them  to  its  own  use  or  otherwise.  It  may  do 
anything  necessary  to  strengthen  itself  and  weaken  the  enemy. 
There  is  no  limit  to  the  powers  that  may  be  exerted  in  such 
cases  save  those  which  are  found  in  the  laws  and  usages  of 
war. ' ' x 

It  were  useless  to  record  every  instance  illustrative  of  the 
exercise  of  war  powers  by  the  establishment  of  courts,  military 
or  civil,  in  conquered,  rebellious  districts.  The  great  principle 
was  first  assumed  and  afterwards  confirmed  by  decisions  of  the 
Supreme  Federal  Tribunal,  that,  limited  only  by  the  usages  of 
war,  the  authority  of  the  President  and  military  commanders 
in  the  premises  was  complete. 

When  General  McClellan,  in  the  prosecution  of  the  Peninsu- 
lar campaign,  reached  the  vicinity  of  Yorktown,  Va.,  he  on 
April  7th,  1862,  issued  orders  for  the  regulation  not  only  of  his 
army  under  certain  contingencies  in  enemy  country  but  of  non- 
combatant  enemies  themselves  in  their  relations  with  the  mem- 
bers of  that  army.  In  doing  this  he  took  as  a  model  the  orders 
previously  referred  to,  issued  by  General  Scott  in  Mexico  un- 
der similar  circumstances  of  hostility.2 

Premising  with  the  remark  that  the  army  had  advanced  to 
its  then  position  for  the  purpose  of  compelling  submission  to 
the  laws  of  the  United  States,  and  that  extensive  military 
operations  were  found  necessary  for  the  suppression  of  rebellion, 
the  general  announced  that  it  was  found  absolutely  necessary 
for  the  protection  of  the  inhabitants  and  their  property  and 
the  good  order  of  the  army  to  establish  that  unwritten  code  of 
law  which  civilization  has  provided  for  such  exigencies.  It 
was  therefore  ordered:  "First,  that  martial  law  be,  and  the 
same  is  hereby,  declared  to  exist  in  and  about  all  places  occu- 
pied by  the  forces  of  the  army  for  any  and  every  military  pur- 
pose, and  in  and  about  all  its  moving  columns  and  detachments 

I.  20  Wallace,  393-4  ;  2  Wallace,  417  ;  6  Id.,  1.  2.  Appendix,  I. 


IOO  MILITARY    GOVERNMENT   AND   MARTIAL    LAW. 

of  whatever  kind.  Second,  that  all  acts  committed  where 
martial  law  is  here  declared  to  exist,  either  by  officers,  soldiers, 
or  other  persons  connected  with  the  army,  or  by  inhabitants  or 
other  persons,  which  are  commonly  recognized  as  crimes 
against  society,  or  which  may  be  done  in  contravention  of  the 
established  rules  of  war,  shall  be  punishable  by  a  court  or 
military  commission.  Third,  among  the  acts  that  are  made 
punishable  are  murder,  rape,  malicious  personal  injuries,  arson, 
robberies,  theft,  and  wanton  trespass,  including  also  all  at- 
tempts to  perpetrate  such  acts  ;  provided,  however,  that  no 
cause  already  cognizable  by  courts-martial  shall  be  tried  by 
military  commissions.  Fourth,  military  commissions  under 
this  order  shall  be  appointed,  governed,  and  conducted,  their 
proceedings  reviewed  and  their  sentences  executed  as  nearly 
as  practicable  in  accordance  with  courts-martial ;  provided,  that 
all  punishments  under  military  commissions  shall  be  of  the  de- 
scription generally  affixed  throughout  the  United  States  to 
similar  offences."1  So  far  as  practicable  municipal  laws  of 
the  district  occupied  and  all  causes  between  the  inhabitants 
thereof  were  not  interfered  with.  The  order  was  intended  to 
be  and  was  in  fact  a  supplemental  code  rendered  necessary  by 
the  new  position  of  the  army  in  enemy  country  and  the  re- 
lations of  the  population  to  the  members  of  that  army.  It 
need  hardly  be  pointed  out  that  the  term  "martial  law"  as 
here  used,  and  as  previously  used  by  General  Scott  in  Mexico, 
had  not  the  signification  given  to  it  in  this  work,  but  was  de- 
scriptive of  the  state  of  things  which  always  exists  on  the 
theatre  of  an  enemy's  active  military  operations.  The  order 
was  but  the  announcement,  by  the  general  commanding  an 
invading  army  to  all  those  in  the  territory  militarily  occupied, 
of  the  rules  by  which,  within  the  limits  pointed  out,  the  mili- 
tary government  which  existed  in  fact  and  without  announce- 
ment was  to  be  regulated. 

The  course  pursued  by  the  United  States  commanders  at 
Memphis,  Tennessee,  furnishes  another  instructive  example  of 
the  exercise  of  military  authority  in  conquered  rebel  territory, 
but  under  different  circumstances.     Memphis  was  a  large,  and 

i.  G.  O.  2,  H.  Q.  Army  Potomac  ;  R.  R.  S.,  I,  vol.  XI,  pt.  Ill,  p.  77  ; 
see  also  R.  R.  S.,  I,  vol.  12,  pt.  i,  p.  52. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.       IOI 

especially  from  a  strategic  point  of  view,  an  important  place. 
Its  government  involved  the  determination  of  many  questions, 
civil,  criminal,  military.  The  population  was  implacably 
hostile  when  the  city  was  captured,  and  they  remained  so.  It 
had  not  the  commercial  advantages  of  New  Orleans,  and  there- 
fore there  was  less  to  distract  the  attention  of  the  people  from 
the  hardships  of  their  surroundings  and  to  allure  them,  through 
the  avenues  of  trade  and  resulting  material  prosperity,  to  a  recon- 
ciliation with  their  conquerors.  From  the  day  of  its  occupation 
by  Union  forces  until  the  end  of  the  war  the  city  remained, 
therefore,  a  camp,  and  the  inhabitants  liable  to  be  subjected  in 
every  respect  to  summary  military  rule. 

In  those  early  days  the  authority  of  military  commanders 
under  these  circumstances  was  not  fully  understood.  Nor  is 
this  surprising  when  it  is  recalled  that  political  policy,  varying 
from  day  to  day,  went  hand  in  hand  with  the  military  meas- 
ures for  the  suppression  of  rebellion.  The  government  moved 
in  its  career  of  conquest  with  the  olive  branch  in  one  hand  and 
the  sword  in  the  other.  This  made  commanders  uncertain  as 
to  the  extent  of  their  powers.  Consequently,  we  find  General 
Grant  writing  from  Memphis  soon  after  its  capture  to  the  com- 
mander of  the  department  of  Mississippi  :  "  As  I  am  without 
instructions,  I  am  a  little  in  doubt  as  to  my  authority  to  license 
and  limit  trade,  punish  offences  committed  by  citizens,  and  in 
restricting  civil  authority.  I  now  have  two  citizens,  prisoners 
for  murder,  whom  I  shall  have  tried  by  military  commission, 
and  submit  the  findings  and  sentence  to  you.  *  *  *  There 
is  a  board  of  trade  established  to  regulate  what  goods  are  au- 
thorized to  be  received,  and  who  are  authorized  to  receive 
them.  I  think  it  will  be  necessary  also  to  establish  some  kind 
of  court  to  settle  private  claims. ' ' ' 

As  the  necessity  for  it  became  more  apparent,  the  reins  of 
government  were  gradually  more  firmly  gathered  into  the 
hands  of  the  military  authorities.  Orders  were  published  re- 
opening trade  and  communication  with  the  surrounding  country, 
and  prescribing  rules  in  conformity  with  which  travel  in  and 
out  of  the  city  should  be  conducted.  As  before  mentioned,  the 
rents  accumulating  for  houses  of  those  who  had  left  their  homes 

i.  R.  R.  S.,  I,  vol.  17,  part  2,  p.  41. 


102  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

to  cast  their  fortunes  with  the  enemy  were  directed  to  be  paid 
to  the  United  States  rental  agent  appointed  by  the  military 
commander.  The  commanding  general  did  not  assume  au- 
thority to  confiscate  the  rents,  nor  did  he  seize  them  as  booty 
of  war  ;  but,  by  his  subordinates,  collected  and  held  them  sub- 
ject to  such  disposition  as  might  be  thereafter  made  of  them 
by  the  decisions  of  the  proper  tribunals.  If,  in  his  judgment, 
the  measure  added  to  the  security  of  his  own  army,  or  diminished 
the  enemy's  resources,  it  would  be  difficult  to  show  that  it  was 
not  a  proper  military  precaution,  entirely  consistent  with  the 
established  rules  of  war.1 

Soon  after  occupation  a  general  order  was  published,  the 
object  of  which  was  to  punish  or  restrain  all  disorders  or  crimes 
against  the  peace  and  dignity  of  the  community.  Provost 
marshals  were  appointed  who  were  constituted  the  guardians 
of  the  peace,  having  at  their  command  a  suitable  provost  guard 
and  also  supervision  of  the  city  civil  police  force.  A  military  com- 
mission composed  of  three  army  officers  was  organized.  Civil 
offences  committed  by  civilians  were  referred  as  usual  to  civil 
courts.  Civilians  found  lurking  about  the  camps  or  military 
lines  were  ordered  to  be  arrested  and  treated  as  spies.  The 
hours  during  which  all,  both  the  military  and  civilians,  were 
permitted  out  at  night  were  regulated.  The  military  com- 
mission was  not  at  this  early  period  of  its  existence  given  cog- 
nizance of  civil  causes.  Its  jurisdiction  was  limited  to  offences 
against  the  laws  of  war,  and  to  all  offences  against  military 
law  or  order  not  cognizable  by  courts-martial,  whether  com- 
mitted by  soldiers  or  others.2 

Shortly  afterwards  another  military  commission  was  organ- 
ized, composed  of  three  members,  to  try  all  cases  laid  before 
it  by  department,  district,  or  post  commanders,  the  provost 
marshal  general,  or  district  provost  marshals.  Its  jurisdiction 
was  limited  to  criminal  offences.  It  might  sentence  to  fine  or 
imprisonment,  or  both,  or  send  persons  outside  the  military 
lines.  All  incidental  powers,  as  enforcing  attendance  of  wit- 
nesses, eliciting  evidence,  and  securing  bodies  of  prisoners, 
were  given  the  commission  to  render  their  authority  effective. 

1.  Gates  v.  Goodloe,  101  U.  S.,  616. 

2.  R.  R.  S.,  I,  vol.  17,  part  2,  p.  294. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.       I03 

A  correct  record  was  made  in  each  case  tried,  subject  to  review 
by  the  department  commander.1 

Thus  far,  at  Memphis,  no  attempt  had  been  made  to  adjudicate 
civil  causes  before  military  courts.  Doubts  existed  as  to  the  val- 
idity of  such  adjudication.2  In  1863,  however,  the  general  com- 
manding that  city  and  district  appointed  a  "  civil  commission," 
plainly  from  its  origin  a  war  court  in  the  fullest  sense  of  the 
term,  with  authority  to  determine  causes  of  a  civil  nature  that 
might  be  referred  to  it.  The  civil  authority  here  exercised  was 
subsequently  sustained  by  the  Supreme  Court  of  Tennessee, 
and  decisions  of  the  Supreme  Court  of  the  United  States  leave  no 
room  for  doubt  that,  had  the  decision  of  the  State  court  mentioned 
been  appealed  from,  it  would  have  been  affirmed.3  "  The  right 
of  a  military  occupant  to  govern,"  the  Supreme  Court  of  Ten- 
nessee held,  ' '  implied  the  right  to  determine  in  what  manner 
and  through  what  agency  such  government  is  to  be  conducted. 
The  municipal  laws  of  the  place  may  be  left  in  operation  or  sus- 
pended, or  others  enforced.  The  administration  of  justice  may 
be  left  in  the  hands  of  the  ordinary  officers  of  the  law,  or  these 
may  be  suspended  and  others  appointed  in  their  place.  Civil 
rights  and  civil  remedies  may  be  suspended,  and  military  laws 
and  courts,  and  proceedings  may  be  substituted  for  them,  or  new 
legal  remedies  and  civil  proceedings  may  be  introduced.  The 
power  to  create  civil  courts  exists  by  the  laws  of  war  in  a  place 
held  in  firm  possession  by  a  belligerent  military  occupant  ; 
and  if  their  judgments  and  decrees  are  held  to  be  binding  on 
all  parties  during  the  period  of  such  occupation,  as  the  acts  of 
a  de  facto  government,  no  valid  ground  can  be  assigned  for  re- 
fusing to  them  a  like  effect,  when  pleaded  as  res  judicata  before 
the  regular  judicial  tribunals  of  the  State  since  the  return  of 
peace."  And  it  was  held,  accordingly,  that  a  civil  cause 
within  its  cognizance  having  been  decided  by  the  civil  commis- 
sion appointed  by  the  military  commander,  and,  after  the  rein- 
statement of  the  regular  civil  tribunals,  action  having  been 
brought  before  them  on  the  same  cause,  plea  of  res  judicata  was 
valid  and  a  bar  to  the  action.4 

1.  R.  R.  S.,  I,  vol.  24,  part  3,  p.  1067.  2.  22  Wallace,  p.  301  et  seq.; 

Field,  J.,  dissentient.  3.  22  Wallace,  276;  12  Wall,  173  ;   15  Wallace, 

384.  4.  6  Cold  well,  391  ;  7  Coldwell,  341  ;  contra,  12  Heiskell,  401. 


104  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

But  the  most  instructive  instances  of  the  establishment  of 
courts,  in  enemy  territory  was  at  New  Orleans  and  in  Louisiana. 
The  courts  themselves  had  various  origins.  Subsequently 
some  of  their  decisions  were  reviewed  by  the  Supreme  Court  of 
the  United  States,  when  the  constitutional  power  of  the  Presi- 
dent, and  of  military  commanders  under  him,  to  organize  war 
courts,  as  well  as  the  right  of  said  courts  to  take  cognizance  of 
all  causes,  military,  criminal,  and  civil,  was  fully  sustained.1 

The  principles  announced  by  the  commanding  general  when 
the  city  was  captured  as  those  which  should  govern  him  in 
repressing  disorder  and  crimes  and  securing  the  observance  of 
law  have  been  already  mentioned. 

A  military  commission  of  not  less  than  five  officers  of  and 
above  the  rank  of  captain,  with  a  recorder  and  legal  adviser, 
was  directed  to  be  organized  for  the  trial  of  all  crimes  and  mis- 
demeanors which  by  the  laws  of  any  State  in  the  Union  or  the 
United  States,  or  the  law-martial,  were  punishable  with  death 
or  a  long  term  of  imprisonment.  The  sentences  of  such  com- 
mission were  to  be  assimilated  to  those  provided  by  such  laws, 
regard  being  had  to  necessity  for  severity  and  prompt  punish- 
ment incident  to  crimes  and  disorders  arising  from  a  state  of 
war.  And  recognizing  that  the  motives  of  men  entered  so 
largely  as  an  element  of  the  crimes  cognizant  by  the  commis- 
sion, the  commanding  general  directed  that  the  rules  of  evidence 
of  the  English  common  law  might  be  so  far  relaxed  as  to  allow 
the  accused  to  be  questioned  before  the  commission  to  answer 
or  not  at  his  discretion.  Charges  were  drawn  and  proceedings 
conducted  substantially  after  the  manner  used  in  courts-martial. 
The  proceedings,  findings,  and  sentences  were  reviewed  by  the 
commanding  general.  The  commission  took  cognizance  of  only 
the  higher  crimes  and  misdemeanors.  It  was  without  civil 
jurisdiction.3  So  far  as  known,  no  question  arose  as  to  the  au- 
thority to  appoint  this  commission,  or  the  validity  of  its  pro- 
ceedings. 

But  the  jurisdiction  of  the  war  courts  was  not  to  be  re- 
stricted to  criminal  matters  ;  civil  affairs  were  to  be  regulated. 
At  the  same  time  that  the  military  commissions  were  organized 

i.   iooU.  S.,  158;  9  Wallace,  132;  22  Wallace,   276;  20  Wallace,  394;  12 
Wallace,  173;  15  Wallace,  384.  2.  R.  R.  S.,  I,  Vol.  6,  p.  722. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.       105 

an  officer  of  the  army  was  appointed  provost  judge  of  the  city 
of  New  Orleans.  This  provost  court  took  cognizance  not  only 
of  criminal  but  civil  causes,  among  the  latter  one  involving  a 
judgment  for  $130,000.  Objection  being  made  that  the  court 
legally  could  not  take  jurisdiction,  the  case  was  finally  ap- 
pealed to  the  Supreme  Court  of  the  United  States,  where  the 
following  objections  to  the  jurisdiction  were  urged  :  First, 
that  its  establishment  was  a  violation  of  that  section  of  the 
Constitution  which  vests  the  judicial  power  of  the  general  gov- 
ernment in  our  Supreme  Court  and  in  such  inferior  courts  as 
Congress  may  from  time  to  time  ordain  and  establish  ; '  second, 
conceding  that  there  was  no  violation  of  the  Constitution,  yet 
that  the  commanding  general  had  no  authority  to  establish  the 
court,  but  that  the  President  alone  had  such  authority  ;  third, 
even  if  the  court  was  rightly  established  it  had  no  jurisdiction 
over  civil  causes. 

As  to  the  first  objection  the  Supreme  Court  in  its  decision 
remarked  that,  in  view  of  previous  decisions,2  it  was  not  to  be 
questioned  that  the  Constitution  did  not  prohibit  the  creation 
by  military  authority  of  courts  for  the  trial  of  civil  causes  dur- 
ing civil  war  in  conquered  portions  of  insurgent  States;  that  their 
establishment  was  but  the  exercise  of  the  ordinary  rights  of 
conquest.  Regarding  the  second  objection  it  was  observed 
that  the  general  who  appointed  the  court  was  in  command  of 
the  conquering  and  occupying  army.  He  was  commissioned  to 
conduct  the  war  in  that  theatre.  He  was,  therefore,  invested 
with  all  the  powers  of  making  war,  except  so  far  as  they  were 
denied  to  him  by  the  commander-in-chief,  and  among  these 
powers  was  that  of  establishing  courts  in  conquered  territory. 
It  must  be  presumed  that  he  acted  under  orders  of  his  superior 
officer,  the  President,  and  that  his  acts  in  the  prosecution  of 
the  war  were  the  acts  of  his  commander-in-chief.  As  to  the 
third  and  last  objection  it  was  remarked  that  as  the  Supreme 
Court  of  the  United  States  had  determined  that  the  general 
commanding  had  power  to  appoint  under  the  circumstances  a 
court  with  authority  to  try  civil  cases,  notwithstanding  the 
provisions  of  the  Constitution,  it  would  not  go  on  in  this  case 
and  determine  whether  the  judge  actually  appointed  in  this  in- 

1.  Art.  3,  section  1.  2.  9  Wallace,  129  ;  20  Howard,  176. 


106  MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 

stance  exceeded  his  powers.  This  last  was  not  a  Federal  ques- 
tion. The  State  courts  had  found  that  he  had  not  exceeded  his 
powers.  The  Federal  question  involved  in  this  branch  of  the  .sub- 
ject was  whether  a  commanding  general  could  give  a  provost 
court  cognizance  of  civil  cases,  and  that  question  was  decided 
in  the  affirmative.1 

Two  important  points,  vitally  affecting  authority  of  command- 
ers in  conquered  territory,  were  for  the  first  time  here  deter- 
mined. One,  that  generals  commanding,  in  the  exercise  of 
the  ordinary  rights  of  conquest,  must  be  presumed  to  act  under 
the  orders  of  the  President — that  their  acts  under  these  circum- 
stances are  in  contemplation  of  law  the  acts  of  the  President 
until  the  contrary  affirmatively  appears  ;  the  other,  that  provost 
courts,  established  by  the  conqueror,  are  not  necessarily  limited 
to  the  cognizance  of  minor  criminal  offences,  but  may  have 
conferred  upon  them  power  to  pass  upon  important  civil  cases. 

The  appointment  of  this  provost  court  was  confessedly  but 
the  exercise  of  a  war  power.  It  was  the  making  use  of  one  in- 
strumentality by  the  conqueror  among  the  many  at  his  com- 
mand to  enforce  legitimate  authority.  Called  by  any  other  name 
it  could  equally  well  have  taken  cognizance  of  civil  cases,  had 
the  power  which  brought  it  into  being  conferred  the  jurisdic- 
tion. The  name  made  no  difference.  It  follows,  therefore, 
that  the  ' '  civil  commission  ' '  appointed  by  the  commanding 
general  at  Memphis  properly  took  cognizance  of  civil  cases, 
and  that  the  decision  of  the  Supreme  Court  of  Tennessee,  before 
cited,  correctly  expounded  the  law  as  to  the  effect  to  be  given 
to  its  judgments. 

The  plenary  power  of  the  President,  and  of  commanders  and 
military  governors  under  him,  in  organizing  courts  in  con- 
quered rebel  territory  was  yet  more  fully  vindicated  in  other 
cases. 

Under  that  clause  of  the  proclamation  formally  taking  pos- 
session of  New  Orleans  which  directed  that  civil  causes  between 
party  and  party  be  referred  to  the  ordinary  tribunals,  the  gen- 
eral commanding  the  Union  forces  permitted  the  sixth  district 
court  of  the  city  and  parish  of  New  Orleans  to  continue  in  ex- 
istence, the  judge  having  taken  the  oath  of  allegiance  to  the 

i.  Mechanics  Bank  v.  Union  Bank,  22  Wallace,  297. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.       I07 

United  States.1  Later,  other  local  district  courts  were  set  on 
foot,  judges  being  appointed  in  the  place  of  those  who  had  cast 
their  fortunes  with  the  enemy.  But  jurisdiction  exercised  by 
these  courts  was  limited  to  citizens  of  the  city  and  parish 
of  New  Orleans.  As  to  other  residents  of  the  State,  there  was 
no  regularly  organized  court  in  which  they  could  be  sued.2 
This  judicial  system  it  subsequently  devolved  on  the  military 
governor  of  Louisiana  to  regulate.3  But  it  is  plain  that  because 
of  the  limited  territorial  jurisdiction  of  the  district  court,  many 
litigants  were  without  remedy.  This,  if  not  corrected,  was  a 
grievous  evil. 

To  make  the  system  more  complete  and  afford  all  suitors 
facilities  for  prosecuting  their  claims,  the  President,  by  execu- 
tive order,  dated  October  20,  1862,  organized  a  provisional 
court,  constituting  it  a  court  of  record,  with  all  the  powers  in- 
cident thereto,  for  the  State  of  Louisiana.  Prefacing  his  proc- 
lamation with  the  statement  that  insurrection  had  temporarily 
swept  away  and  subverted  the  civil  institutions,  including  the 
judiciary  and  judicial  authority  of  the  Union,  so  that  it  had  be- 
come necessary  to  hold  the  State  in  military  occupation  ;  that 
it  was  indispensably  necessary  that  there  should  be  some  ju- 
dicial tribunal  existing  there  capable  of  administering  justice, 
the  President  instituted  the  provisional  court  and  appointed  a 
judge  thereto,  with  authority  to  hear,  try,  and  determine  all 
causes,  civil  and  criminal,  including  causes  in  law,  equity,  reve- 
nue, and  admiralty,  and  particularly  exercising  all  such  powers 
and  jurisdiction  as  belonged  to  the  district  and  circuit  courts  of 
the  United  States,  conforming  his  proceedings  so  far  as  possible 
to  the  course  of  proceedings  and  practice  which  had  been  custo- 
mary in  the  courts  of  the  United  States  in  Louisiana,  his  judg- 
ment to  be  final  and  conclusive. 

The  conferring  on  this  provisional  judge  all  such  powers  and 
jurisdiction  as  belonged  to  the  district  courts  of  the  United 
States  included  necessarily  that  of  a  prize  court.  That  United 
States  districts  courts  had  prize  court  powers  was  early  decided 
by  the  Supreme  Court,4  and  such  powers  were  expressly  con- 

1.  Dow  v.  Johnson,  100  U.  S.,  159.  2.  Rise  and  Fall  of  the  Confederate 

Government,  vol.  2,  p.  289.  3.  Haudlin  v.  Wicldiff,  12  Wallace,   173  ; 

Pennywit  v.  Eaton,  15  Wallace,  384.         4.  Glass  v.  Sloop  Betsy,  3  Dallas,  6. 


Io8  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

ferred  by  the  act  of  June  26,  1812.1  On  the  other  hand,  the 
Supreme  Court  of  the  United  States,  in  the  case  of  Jecker  v. 
Montgomery,  had  decided  that  ' '  neither  the  President  nor  any 
military  officer  can  establish  a  court  in  a  conquered  country 
and  authorize  it  to  decide  upon  the  rights  of  the  United  States 
or  of  individuals  in  prize  cases. ' '  It  therefore  remained  to  be 
seen  whether  the  jurisdiction  conferred  upon  the  provisional 
court  would  be  sustained.  The  validity  of  its  existence  was 
soon  vehemently  attacked.  The  power  of  the  President  to  es- 
tablish it  was  questioned  on  constitutional  grounds.  But  his 
course  was  sustained  by  the  Supreme  Federal  Tribunal  in  a 
manner  at  once  masterly  and  conclusive,2  and  received  likewise 
the  sanction  of  the  national  legislature.3 

The  case  which  first  brought  the  authority  of  the  President 
to  establish  the  provisional  court  judicially  in  question  was  that 
of  the  Grapeshot.4  Originally  the  case  was  a  libel  in  the  dis- 
trict court  of  the  United  States  for  Louisiana,  on  a  bottomry- 
bond,  and  was  decided  in  favor  of  the  libellants.  Appeal  was 
taken  to  the  circuit  court  where,  in  1861,  proceedings  were  in- 
terrupted by  the  Civil  War.  Subsequently,  by  consent  of  the 
parties,  the  cause  was  transferred  to  the  provisional  court  where 
a  decree  was  again  rendered  in  favor  of  the  libellants. 

Upon  the  restoration  of  civil  authority  in  the  State  the  pro- 
visional court,  limited  in  duration  according  to  the  terms  of  the 
order  constituting  it,  by  that  event  ceased  to  exist.  By  act  of 
July  28,  1866,  all  suits,  causes,  and  proceedings  in  the  pro- 
visional court  proper  for  the  jurisdiction  of  the  circuit  court  of 
the  United  States  for  the  eastern  district  of  Louisiana  were 
directed  to  be  transferred  to  the  latter  to  be  heard  and  deter- 
mined therein  ;  and  all  judgments,  orders,  and  decrees  of  the 
provisional  court  in  causes  thus  transferred  to  the  circuit  court, 
it  was  provided  should  at  once  become  the  orders,  judgments, 
and  decrees  of  that  court,  and  might  be  enforced,  pleaded,  and 
proved  accordingly.5 

Article  3,  section  1 ,  Constitution  of  the  United  States,  de- 
clares that  "the judicial  power  of  the  United  States  shall  be 

1.  2  Statutes  at  Large,  761  ;  1  Kent,  357  ;  Story,  Constitution,  book  2,  ch. 
38,  sec.  866.  2.  9  Wallace,  129;  22  Wallace,  276;   12  Wallace,   173. 

3.  Act  July  28,  1866,  Stat,  at  Lg.,  14,  p.  344.  4.  9  Wallace,  129. 

5.  Ch.  310,  Stat,  at  Lg.,  14,  344- 


LAWS   OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.       109 

vested  in  one  Supreme  Court  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish  ; ' '  and 
the  great  question  of  constitutional  law  here  was  raised  whether, 
consistently  with  this,  the  President  could  establish  the  court, 
or  Congress,  on  the  suppression  of  the  rebellion,  could,  by  its 
enactment,  validate  its  doings,  transfer  its  judgments,  and 
make  them  judgments  of  the  now  re-established  former  and 
proper  Federal  courts. 

After  citing  its  previous  decisions,  the  principles  of  which 
were  applicable  to  the  case,  the  Supreme  Court  remarked  that 
they  had  no  doubt  that  the  provisional  court  of  Louisiana  was 
properly  established  by  the  President  in  the  exercise  of  his 
constitutional  authority  during  war,  or  that  Congress  had 
power  upon  the  close  of  the  war  and  the  dissolution  of  the 
provisional  court  to  provide  for  the  transfer  of  cases  pending  in 
that  court  and  of  its  judgments  and  decrees  to  the  proper  courts 
of  the  United  States.1  The  clause  of  the  Constitution  relating 
to  the  judicial  power  of  the  United  States,  it  was  observed,  had 
no  application  to  the  abnormal  condition  of  conquered  territory 
in  the  occupation  of  the  conquering  army  ;  it  refers  only  to 
courts  of  the  United  States,  which  military  courts  are  not  ;  it 
became  the  duty  of  the  National  Government,  whenever  the 
insurgent  power  was  overthrown  and  the  territory  which  had 
been  dominated  by  it  was  occupied  by  the  national  forces,  to 
provide,  as  far  as  possible,  so  long  as  the  war  continued,  for 
the  security  of  persons  and  property  and  for  the  administration 
of  justice;  the  duty  of  the  National  Government  in  this  re- 
spect was  no  other  than  that  which  devolves  upon  a  regular 
belligerent,  occupying  during  war  the  territory  of  another 
belligerent.2  The  constitutional  power  of  the  President  in  the 
premises  is  found  in  that  clause  which  provides  that  he  shall 
be  commander-in-chief  of  the  army  and  navy  of  the  United 
States  and  of  the  militia  when  called  into  actual  service.3 

Thus  it  has  been  solemnly  determined  that  the  authority  of 
the  President,  and  of  commanders  under  him,  for  the  establish- 
ment of  courts  in  conquered  territory  is  complete,  limited  only 
by  the  exigencies  of  service  and  the  laws  of   war  ;  that   such 

1.  9  Wallace,  133  ;  20  Howard,  176 ;  13  Ibid.  49S  ;  16  Id.,  164  ;  4  Whea- 
ton,  246.         2.  9  Wallace,  132  ;  22  Wallace,  295.         3.  Art.  2,  sec.  2,  cl.  1. 


IIO  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

courts,  if  given  jurisdiction  by  the  power  bringing  them  into 
existence,  properly  may  take  cognizance  of  questions,  military, 
criminal,  and  civil  ;  and  that  there  is  no  distinction  in  this  re- 
gard between  the  cases  of  territory  conquered  from  a  foreign 
enemy  or  rescued  from  rebels  treated  as  belligerents. 

L,et  us  now  consider  the  second  proposition,  namely,  what 
laws  and  what  system  of  judicature  apply  under  military  gov- 
ernment to  citizens,  soldiers,  or  others  of  the  conquering 
State. 

As  to  members  of  the  conquering  army — soldiers  and  camp 
followers — it  will  be  found  that  they  are  subject  only  to  the 
rules  and  articles  of  war,  or,  when  these  fail  to  meet  the  case, 
to  the  common  law  military,  the  laws  of  war.  That  they  are 
not  amenable,  during  military  occupation,  to  the  laws  or 
courts  of  the  conquered  State  has  been  judicially  and  finally 
decided.1 

The  statute  in  emphatic  language  declares  that  "the  armies 
of  the  United  States  shall  be  governed  by ' '  the  rules  and  ar- 
ticles of  war.2  They  equally  apply  whether  the  forces  be 
operating  abroad  or  within  United  States  territory.3  That  this 
should  be  so  when  the  armies  are  without  the  boundaries  of  the 
Union  follows  from  the  right  of  the  government  to  wage  wars  of 
conquest ;  a  right  which  both  experience  and  judicial  decisions 
has  confirmed.4  This  rule  rests  upon  reason  ;  from  a  military 
view  a  war  of  conquest  may  be  a  defensive  war,  a  fact  which 
the  history  of  nations  abundantly  shows  ;  and  as  such  wars 
necessarily  carry  its  armies  without  the  boundaries  of  the 
United  States,  it  follows  that  either  the  statutory  law  embodied 
in  the  rules  and  articles  of  war  must  be  held  to  apply  there,  or 
those  armies  so  situated  be  wholly  governed  by  the  common 
laws  of  war  as  practiced  in  the  civilized  world.  The  latter  al- 
ternative has  not  found  favor  with  those  upon  whom  the  duty 
has  devolved  of  interpreting  and  applying  the  law. 

The  Constitution  empowers  Congress  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval  forces.5  Con- 
gress, in  giving  effect  to  this  constitutional  provision  by  the 

1.  Dow  v.  Johnson,  ioo  U.  S.,  15S  ;  Coleman  v.  Tennessee,  97  U.  S.,  509. 

2.  Section  1342,  R.  S.,  U.  S.  3.  5  Op.  Atty.-Gen.,  58. 

4.  Fleming  v.  Page,  9  Howard,  615.  5.  Art.  1,  sec.  S,  cl.  13. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.       Ill 

enactment  of  certain  rules  and  articles,  has  in  no  manner  made 
their  applicability  depend  upon  the  locality  or  theatre  of 
operations.  In  truth,  certain  of  the  articles  of  war  in  express 
terms  provide  for  contingencies  happening  in  "  foreign  parts."  ' 
Hence  it  is  not  questioned  that  whether  the  armies  be  within 
the  territorial  limits  of  the  Union,  or  pursuing  schemes  of  con- 
quest abroad,  they  are  governed  by  the  rules  and  articles  of 
war. 

These  rules  and  articles  take  cognizance  of  all  crimes  with 
a  single  exception,  and  all  disorders  and  neglects  to  the 
prejudice  of  good  order  and  military  discipline  with  which 
members  of  the  military  establishment  are  charged.  Specific 
crimes,  disorders,  and  neglects,  capital  and  otherwise,  are  de- 
nounced therein  as  military  offences,  the  method  of  punish- 
ment therefor  is  pointed  out,  and  then,  with  a  sweeping  clause 
all  other  crimes  not  capital  and  all  other  disorders  and  neglects 
are  brought  within  the  cognizance  of  courts-martial  according 
to  the  nature  and  degree  of  the  offence,  and  made  punishable 
at  the  discretion  of  such  courts.2 

A  question  has  sometimes  been  raised  whether,  notwithstand- 
ing these  provisions  of  law,  certain  heinous  crimes  when  per- 
petrated by  those  composing  the  armies  of  United  States  are 
triable  before  military  tribunals.3  Reference  is  here  made  to 
grave  offences  which  subject  the  perpetrator  to  severe  punish- 
ment by  the  ordinary  criminal  courts  of  the  land.  The  writer 
of  this  work  does  not  join  in  these  doubts.  No  doubt  is  here 
entertained  of  the  authority  of  military  tribunals  to  take  cogni- 
zance of  all  offences  reflecting  upon  the  service,  committed  by 
persons  composing  the  armies  of  the  United  States,  with  the 
single  exception  of  capital  crimes  not  specifically  mentioned  in 
the  Articles  of  War.  On  the  contrary,  it  is  believed  that  the 
sole  criterion  of -jurisdiction,  under  the  law,  is  not  the  name  of 
the  crime  or  offence,  but  whether  or  not  in  its  effects  it  is  pre- 
judicial to  good  order  and  military  discipline.4 

It  was  this  jurisdictional  question  which  in  great  degree 
prompted  General  Scott,  as  has  been  mentioned,  to  promulgate 
in  Mexico  a  code  supplemental  to  the  rules  and  articles  of  war, 

I.  As  Arts.  56,  57.  2.  62d  Article  of  War.  3.  Scott's  Autobiog- 

raphy, pp.  393,  541.  4.  See  Winthrop's  Mil.  Law,  vol.  1,  p.  961. 


112  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

and  which  conferred  upon  military  commissions  cognizance  of 
many  crimes  whether  committed  by  members,  retainers,  or  fol- 
lowers of  the  United  States  Army,  upon  either  the  persons  or 
property  of  the  people  of  the  country,  or  upon  other  members, 
retainers,  or  followers  of  the  same  army.  The  principle  was 
here  clearly  enunciated  that,  so  far  as  members  of  the  invading 
army  were  concerned,  the  authority  of  military  commanders  to 
maintain  order,  punish  crime,  and  protect  property  was  suffi- 
cient for  every  contingency.  Where  the  statutory  law  proved 
deficient,  or  was  supposed  to  be  so,  the  supplemental  code 
drawn  from  the  customs  of  war  supplied  the  deficiency.1  The 
principle  has  received  both  judicial  and  legislative  sanction.2 
It  may  be  laid  down,  therefore,  as  an  accepted  rule  that  crimes 
committed  abroad  by  members,  retainers,  and  followers  of  the 
army  shall  never  go  unwhipt  of  justice. 

There  exists  no  authority  save  in  the  Articles  of  War  and  the 
customs  of  war  for  taking  cognizance  of  such  crimes.  Except 
in  certain  cases,  not  here  considered  because  not  relevant, 
United  States  penal  statutes  do  not  apply  to  crimes  perpetrated 
outside  the  boundaries  of  the  Union.3  Not  only  do  United 
States  courts  have  no  common  law  criminal  jurisdiction,  but 
military  tribunals,  save  in  specified  crimes,  of  which  murder  is 
not  one,  can  not  take  cognizance  of  crimes  perpetrated  by  its 
members  who  have  ceased  to  belong  to  the  army.  (48, 60, 103,  Ar- 
ticles War.)  This  may  and  in  fact  has  led  to  criminal  immunity, 
as  for  instance,  when  Perote,  Mexico,  was  occupied  by  United 
States  troops  and  the  place  was  under  military  government  an 
officer  of  the  American  army  was  accused  of  committing  murder 
upon  the  person  of  another.  The  alleged  murderer  was  ar- 
raigned before  a  military  commission,  but  pending  the  trial 
escaped  from  the  guard  and  returned  to  the  United  States.  He 
was  subsequently,  together  with  the  volunteer  organization  to 
which  he  belonged,  mustered  out  of  the  service.  It  was  held 
that  he  was  not,  after  this  event,  subject  to  indictment  and 
trial  for  the  alleged  crime,   which,   if  committed  at  all,  was 

r.  Appendix,  I.  2.   100  U.  S.,   170;  97  U.  S.,  515;  Act  March  3, 

1863,  ch.  75  [58  and  59  Arts,  of  War]  ;  Halleck,  ch.  33,  sec.  6.  3.  Title 

70,   ch.  3,  sees.  5339,  5341,  etc.,  R.  S.,  U.  S.  ;  5  Opinions  Atty.-Gen.,  55  ; 
1  Kent,  Lecture,  16. 


LAWS   OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.       113 

either  against  the  temporary  government  established  under  the 
law  of  nations  by  the  rights  of  war,  or  against  the  rules  and 
articles  for  the  government  of  the  army.  If  against  the  former, 
the  offence  and  its  prosecution  ceased  to  exist  when  that  tem- 
porary government  gave  way  to  the  restored  Mexican  authorities. 
If  against  the  latter,  the  alleged  offender,  having  been  legally 
discharged  the  service  was  no  longer  amenable  to  the  laws  gov- 
erning the  army.  The  criminal  code  prescribed  by  Congress 
had  no  validity  within  Mexican  territory.  The  laws  of  the 
United  States  did  not  extend  over  conquered  districts  of  Mexico. 
While  the  rules  and  articles  of  war  accompanied  the  army  for 
its  government,  the  civil  courts  derived  no  authority  from  that 
source.1 

Laws  of  the  invaded  country  have  no  validity  as  affecting 
members  of  the  conquering  army.  They  can  not  properly  be  given 
jurisdictional  effect.  This  has  been  frequently  and  authori- 
tatively decided.  One  of  the  most  instructive  decisions  of 
the  Supreme  Court  of  the  United  States  upon  this  point  arose 
out  of  the  seizure  of  certain  property  in  that  part  of  Louisiana 
reduced  by  the  Federal  forces  in  1S62.  It  has  already  been  re- 
marked that  within  this  district  certain  of  the  civil  courts  were 
permitted  to  exercise  jurisdiction.  The  decision  of  the  Su- 
preme Court  in  question  put  at  rest  all  claim  that  such  local 
courts  could  pass  upon  the  conduct  of  members  of  the  invading 
army.  The  case  arose  in  the  following  manner  :  Some  mouths 
after  the  occupation  of  New  Orleans  one  of  the  subordinate 
commanders  was  sued  in  one  of  the  local  courts  for  the  seizure 
of  twenty-five  hogsheads  of  sugar  and  other  property  belonging 
to  a  citizen  of  the  State.  To  this  suit,  though  served  with 
citation,  the  officer  made  no  appearance.  Judgment  going  by 
default,  action  was  brought  upon  the  judgment  in  one  of  the 
United  States  circuit  courts  where,  the  judges  being  opposed 
in  opinion,  the  case  was  taken  to  the  Supreme  Court  of  the 
United  States.  The  important  question  was  thus  presented  for 
the  determination  of  that  court  whether  an  officer  of  the 
United  States  Army  is  liable  to  an  action  before  the  local  tri- 
bunals for  injuries  resulting  from  acts  ordered  by  him  in  his 
military  character  whilst  in  the  service  of  the  United  States  in 
the  enemy's  country. 

1.  Case  of  Capt.  Foster,  5  Op.  Attys  -Gen!,  55  ;   Barr,  Iuter'l  Law,  p.  700. 


114  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

This  question, the  court  remarked,  was  not  at  all  difficult  of 
solution  when  the  character  of  the  Civil  War  was  adverted  to. 
That  war,  though  not  between  independent  nations  but  be- 
tween different  portions  of  the  same  nation,  was  accompanied 
by  the  general  incidents  of  international  wars.  It  was  waged 
between  people  occupying  different  territories,  separated  from 
each  other  by  well-defined  lines.  Belligerent  rights  were  ac- 
corded to  the  insurgents  by  the  Federal  Government.  The 
courts  of  each  belligerent  were  closed  to  the  citizens  of  the 
other,  and  its  territory  was  to  the  other  enemy's  territory. 
When,  therefore,  the  Union  armies  marched  into  the  enemy's 
country  their  soldiers  and  officers  were  not  subject  to  its  laws 
nor  amenable  to  its  tribunals  for  their  acts.  There  would  be 
something  singularly  absurd,  the  court  remarked,  in  permitting 
an  officer  or  soldier  of  an  invading  army  to  be  tried  by  his 
enemy  whose  country  it  had  invaded.  The  same  reasons  for 
his  exemption  from  criminal  prosecution  apply  to  civil  proceed- 
ings. There  would  be  as  much  incongruity  and  as  little  like- 
lihood of  freedom  from  the  irritations  of  the  war  in  civil  as  in 
criminal  proceedings  prosecuted  during  its  continuance.  In 
both  instances,'  from  the  very  nature  of  the  war,  the  tribunals 
of  the  enemy  must  be  without  jurisdiction  to  sit  in  judgment 
upon  the  military  conduct  of  the  officers  and  soldiers  of  the 
invading  army. 

Nor  is  the  position  of  the  invading  belligerent  affected  or  his 
relation  to  the  local  tribunals  changed  by  his  prolonged  oc- 
cupation and  domination  of  any  portion  of  the  enemy's  terri- 
tory. The  invaders  are  equally  as  free  from  local  jurisdiction 
as  though  they  were  simply  sweeping  through  the  country.  It 
is  true  that  for  the  benefit  of  the  inhabitants  and  of  others  not 
in  the  military  service — in  other  words,  in  order  that  the  ordin- 
ary pursuits  and  business  of  society  may  not  unnecessarily  be 
deranged — the  municipal  laws,  that  is,  such  as  effect  private 
rights  of  persons  and  provide  for  the  punishment  of  crime,  are 
generally  allowed  to  continue  in  force  and  to  be  administered 
by  the  ordinary  tribunals  as  before  the  occupation  ;  but  this 
argues  nothing  in  favor  of  jurisdiction  over  the  victorious 
enemy  who  makes  these  concessions.  It  is  further  true  that 
these  laws  are  regarded  as  continuing  in  force  unless  suspended 
or  superseded  by  the  occupying  belligerent.     But  their  con- 


LAWS    OBLIGATORY   WITHIN    OCCUPIED   TERRITORY.       115 

tinued  enforcement  is  not  for  the  protection  or  control  of  the 
occupying  army,  its  officers  or  soldiers.  These  remain  subject 
to  the  laws  of  war,  and  are  responsible  for  their  conduct  only  to 
their  own  government  and  the  tribunals  by  which  those  laws 
are  administered.  If  guilty  of  cruelty  to  persons,  or  of  unnec- 
essary spoilation  of  property,  or  of  other  acts  not  authorized  by 
the  laws  of  war,  they  may  be  tried  and  punished  by  military 
tribunals.  They  are  amenable  to  none  other  except  that  of 
public  opinion  which,  it  is  to  be  hoped,  will  always  brand  with  in- 
famy all  who  authorize  or  sanction  acts  of  cruelty  and  oppression. 
The  decision  of  the  Supreme  Court  was,  therefore,  that  the 
district  court  of  New  Orleans,  at  the  time  and  place  mentioned, 
had  not  jurisdiction  of  the  parties  and  cause  of  action  to  ren- 
der the  judgment  in  question.1 

In  the  course  of  this  opinion  there  was  cited  the  analogous 
and  instructive  case  of  Elphinstone  v.  Bedreechund,2  in  which 
it  likewise  was  decided  that  a  local  court  has  no  jurisdiction 
to  adjudge  upon  the  validity  of  a  hostile  seizure  of  property  ; 
that  is,  a  seizure  made  in  the  exercise  of  a  belligerent  right. 
In  that  case  British  forces,  November  16th,  18 17,  captured,  and 
afterward  held,  Poonah,  the  capital  of  the  powerful  Mahrattas. 
A  provisional  government  was  established  whose  control  after- 
wards was  undisturbed.  On  the  17th  of  July,  1818,  the  members 
of  the  provisional  government  seized  the  private  property  of  a 
native  under  the  belief  that  it  was  public  property  entrusted  to 
the  holder  by  the  hostile  sovereign.  At  the  time  there  were 
no  hostilities  in  the  immediate  neighborhood,  and  the  civil 
courts,  under  the  favor  of  the  conqueror,  were  sitting  for  the 
administration  of  justice.  The  whole  country,  however,  was 
in  a  disturbed  state.  Poonah  was  greatly  disaffected.  The 
vanquished  were  dispersed  but  not  subdued.  Action  being 
brought  against  the  members  of  the  provisional  government 
for  the  seizure,  judgment  was  rendered  against  them  in  the  su- 
preme court  of  Bombay  upon  the  ground,  apparently,  that  at 
the  time  and  for  some  months  preceding  the  city  had  been  in 
'undisturbed  possession  of  the  provisional  government,  and 
civil  courts  under  its  authority  were  sitting  there  for  the  ad- 

1.  100  U.  S.,  p.  158,  et  seq. 

2.  1  Knapp,  Privy  Council  Reports,  p.  316. 


Il6  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

ministration  of  justice.  On  appeal  to  the  privy  council  judg- 
ment was  reversed.  ' '  We  think, ' '  said  Lord  Tenterden,  speak- 
ing for  the  council,  "the  proper  character  of  the  transaction 
was  that  of  a  hostile  seizure  made,  if  v&i  flagrante,  yet  nondum 
cessante  bello,  regard  being  had  both  to  the  time,  the  place,  and 
the  person  ;  and  consequently  that  the  municipal  court  had  no 
jurisdiction  to  adjudge  upon  the  subject,  and  that,  if  anything 
was  done  amiss  recourse  could  only  be  had  to  the  government 
for  redress." 

The  case  of  Coleman  v.  Tennessee  goes  directly  to  the  same 
point.  Here,  while  the  Civil  War  was  flagrant,  Coleman,  a 
soldier  of  the  Union  army,  committed  murder  in  Tennessee, 
then  a  district  declared  by  proclamation  of  the  President  to  be 
in  a  state  of  insurrection.  He  was  tried  by  court-martial,  found 
guilty,  and  sentenced  to  be  hanged.  Pending  execution  of  the 
sentence  he  escaped.  Nine  years  afterwards,  the  rebellion 
being  conquered  and  Tennessee  having  resumed  her  position 
as  a  State  in  the  Union,  he  was  indicted  before  the  criminal 
court  of  the  district  wherein  the  murder  was  committed,  con- 
victed of  the  crime,  and  sentenced  to  death.  On  appeal  to  the 
State  supreme  court  judgment  was  affirmed.  The  case  was  then 
taken  by  writ  of  error  to  the  Supreme  Court  of  the  United 
States,  where  the  judgment  of  the  State  supreme  court  was  re- 
versed and  the  defendant  directed  to  be  discharged  from  civil 
custody.1 

It  was  remarked,  in  delivering  the  opinion  of  the  court,  that 
when  the  armies  of  the  United  States  were  in  enemy's  country 
military  tribunals  had,  under  statutory  law  and  the  laws  of 
war,  exclusive  jurisdiction  to  try  and  punish  offences  of  every 
grade  committed  by  persons  in  the  military  service  ;  that 
officers  and  soldiers  of  whatever  grade  were  not  subject  to  the 
laws  of  the  enemy  or  amenable  to  his  tribunals  ;  that  they 
were  answerable  only  to  their  own  government,  and  only  by 
its  laws  as  enforced  by  its  armies  could  they  be  punished  ;  and 
that  if  an  army  marching  through  a  friendly  country  would  be 
exempt  from  its  civil  and  criminal  jurisdiction,  as  the  Supreme 
Court  had  decided,  so  much  the  more  would  an  invading  army 
be  exempt. 

I.  97  U.  S.,  509,  et  seq.  ;  Proclamation,  August  16,  1861,  12  Stats,  at  Large, 
1262. 


LAWS    OBLIGATORY   WITHIN   OCCUPIED    TERRITORY.       I  1 7 

The  fact  that  when  the  offence  was  committed  Tennessee 
was  in  the  military  occupation  of  the  United  States,  with  a 
military  governor  at  its  head  appointed  by  the  President, 
could  not  alter  the  conclusion.  Tennessee  was  one  of  the  in- 
surgent States  forming  the  organization  known  as  the  Confed- 
erate States,  against  which  the  war  was  waged.  Her  territory 
was  enemy's  territory,  and  its  character  in  this  respect  was  not 
changed  until  long  afterwards.  So  far  as  the  laws  of  the  State 
were  continued  in  force  it  was  only  for  the  protection  and 
benefit  of  its  own  people.  As  respects  them  the  same  acts 
which  constituted  offences  before  the  military  occupation  con- 
stituted offences  afterwards  ;  and  the  same  tribunals,  unless 
superseded  by  order  of  the  military  commanders,  continued  to 
exercise  their  ordinary  jurisdiction.1 

In  denying  to  the  State  courts  jurisdiction  in  this  case  the 
correctness  of  the  general  doctrine  was  not  questioned  that  the 
same  act  may,  in  some  instances,  be  an  offence  against  two 
governments,  and  that  the  transgressor  may  be  liable  to  pun- 
ishment by  both  or  either,  depending  upon  its  character.  But 
this  did  not  present  a  case  for  the  application  of  the  doctrine. 
And  this  for  the  reason  that  the  laws  of  Tennessee  did  not 
apply  during  military  occupation  to  the  defendant,  a  soldier  of 
the  United  States  and  subject  to  the  articles  of  war.  He  was 
responsible  for  his  conduct  to  the  laws  of  his  own  government 
only  as  enforced  by  the  commander  of  its  army  in  that  State, 
without  whose  consent  he  could  not  even  go  beyond  its  lines. 
Had  he  been  caught  by  the  forces  of  the  enemy,  after  commit- 
ting the  offence,  he  might  have  been  subjected  to  a  summary 
trial  and  punishment  by  order  of  their  commander  ;  and  there 
would  have  been  no  just  ground  of  complaint,  for  the  marauder 
and  assassin  are  not  protected  by  any  usages  of  civilized  war- 
fare. But  the  courts  of  the  State,  whose  regular  government 
was  superseded  and  whose  laws  were  tolerated  from  motives  of 
convenience,  were  without  jurisdiction  to  deal  with  him. 

These  decisions  conform  to  the  principles  of  international 
law  and  give  a  sanction  to  existing  practices  under  the  laws  of 
war.     They  completely  negative  the  suggestion  that  the  in- 

I.  Act  July  13,   1861,  ch.  3,  sec.  5,  Statutes  at  Large,  12,  p.  257  ;  Procla- 
mation, August  16,  1861,  Ibid..,  1262. 


I  iS  MILITARY   GOVERNMKNT  AND   MARTIAL   LAW. 

vaders  are  subject  to  the  laws  and  are  amenable  either  civilly 
or  criminally  before  the  courts  of  countries  subjected  to  their 
arms.1 

So  much  for  the  invading  military  ;  the  laws  of  the  place 
can  not  touch  them.  But  what  laws  and  what  system  of  judi- 
cature apply  under  military  government  to  civilians,  citizens 
of  the  conquering  State  ?  The  forty-fifth,  forty-sixth,  and  sixty- 
third  of  the  rules  and  articles  for  the  government  of  the  army, 
and  section  thirteen  hundred  and  forty- three  Revised  Statutes 
of  the  United  States,  take  cognizance  of  offences  committed  by 
the  latter  class  of  persons. 

The  forty-fifth  article  declares  that  whosoever  relieves  the 
enemy  with  money,  victuals,  or  ammunition,  or  knowingly 
harbors  or  protects  an  enemy,  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct.  The  forty-sixth, 
that  whosoever  holds  correspondence  with  or  gives  intelligence 
to  the  enemy,  either  directly  or  indirectly,  shall  suffer  death  or 
such  other  punishment  as  a  court-martial  may  direct.  The  sixty- 
third  provides  that  all  retainers  to  the  camp,  and  all  persons 
serving  with  the  armies  of  the  United  States  in  the  field,  though 
not  enlisted  soldiers,  are  to  be  subject  to  orders,  according  to  the 
rules  and  discipline  of  war.  The  section  of  the  Revised  Statutes 
referred  to  states  that  all  persons  who,  in  time  of  war  or  rebel- 
lion against  the  supreme  authority  of  the  United  States,  shall 
be  found  lurking  or  acting  as  spies  in  or  about  any  of  the  forti- 
fications, posts,  quarters,  or  encampments  of  any  of  the  armies 
of  the  United  States,  or  elsewhere,  shall  be  triable  by  a  general 
court-martial,  or  by  a  military  commission,  and  shall,  on  con- 
viction thereof,  suffer  death. 

It  is  proper  to  remark  that  these  statutory  provisions  are  not 
limited  in  their  purview  to  civilians,  citizens  of  the  conquering 
State,  under  military  government ;  still  they  are  applicable  to 
such  persons.  For  the  taking  cognizance,  however,  of  all 
crimes  committed  by  or  against  this  class  of  civilians  under 
military  government,  no  laws  have  validity  save  those  just 
mentioned  and  the  common  laws  of  war.  The  forty-fifth  and 
forty-sixth  articles  are  general  in  their  terms,  and  have  received 
in  practice  an  interpretation  which  does  not  limit  their  appli- 

i  .  Wheaton,  p.  437,  Dana's  note  ;  Halleck,  pp.  782-'6. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.       119 

cability  as  to  persons.  ' '  Whosoever  "  is  a  term  unlimited  in 
its  nature,  and  which  can  be  limited  only  by  "construction  "  — 
that  uncertain  and  potent  modifier  of  statutory  law.  In  this 
instance  it  has  been  construed  to  mean  what  the  language 
naturally  imports  ;  and  that  any  one  who  is  guilty  of  the 
offences  denounced  is  amenable  before  military  courts  in  the 
manner  indicated  in  the  articles.1  Where  civil  courts  are  sit. 
ting  to  which  the  offender  may  be  delivered  for  trial,  this  course 
may  be  and  often  is  pursued.  These  articles,  being  penal  in 
their  nature  and  derogatory  of  the  constitutional  right  of  trial 
by  jury,  are  to  be  strictly  construed.  Wherever  the  civil  courts 
without  prejudice  to  the  interests  of  the  service  can  take  juris- 
diction this  should  be  done.  But  this  is  not  the  case  under  mili- 
tary government,  where  such  offenders  must  either  be  tried  by 
the  military  or  go  unpunished. 

In  its  terms  the  sixty-third  article  of  war  subjects  ' '  retainers  ' ' 
and  others  mentioned  ' '  to  orders  only  according  to  the  rules 
and  discipline  of  war."  But  by  universal  construction  given 
the  language  of  the  article  the  persons  indicated  have  been 
held  amenable  to  trial  before  military  courts  for  violations  of 
either  the  statutory  or  common-law  military  codes.2 

For  crimes  of  which  they  may  be  accused,  civilians,  citizens 
of  the  conquering  State,  accompanying  the  army  are  under  mili- 
tary government  subject  only  to  either  statutory  law  directly 
applicable  to  their  cases  or  to  the  common  laws  of  war,  and  are 
amenable  before  military  courts.  In  the  nature  of  things  it 
must  be  so.  The  jurisdiction  exercised  over  this  class  must  be 
either  military  or  civil.  If  the  former,  it  can  only  be  exercised 
by  military  commanders  in  accordance  with  military  law,  either 
statutory  or  common.  If  the  latter,  cognizance  of  crimes  by 
civil  courts  must  be  in  pursuance  of  the  criminal  laws  either  of 
the  conquering  or  the  conquered  State.  But  criminal  laws  of 
the  conquering  State  have  no  validity  in  territory  under  mili- 
tary government  which,  for  belligerent  purposes,  is  always  con- 
sidered foreign  ;  while  those  of  the  conquered  State  are  re- 
tained as  an  act  of  the  conqueror's  grace  for  the  benefit  of  the 
conquered  alone,  and  legally  there  can  not  be  drawn  within  this 

1.  O'Brien,  151  ;  De  Hart,  22;  Winthrop,  1,  p.  117,  et  seq. 

2.  De  Hart,  22  ;  Beuet,  33  ;  Ives,  60  ;  Digest,  48 ;  Winthrop,  vol.  1,  p.  118. 


120  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 

jurisdiction  causes  affecting  either  members  of  the  invading 
army,  retainers  or  followers  thereof,  or  other  civilians  in  the 
service  of  the  conquering  State.1 

In  order  that  civilians  may  be  brought  within  the  cognizance 
of  the  sixty-third  article  of  war,  they  must  in  some  manner  be 
connected  with  the  army,  either  in  government  employ  or 
otherwise  voluntarily  accompanying  it.  The  article  has  no 
reference  to  and  in  no  manner  affects  other  civilians,  either 
persons  who  by  proper  authority  are  in  the  pursuit  of  private 
enterprises,  or  those  who  are  engaged  in  branches  of  govern- 
ment service  other  than  the  military.  So  long  as  these  latter 
descriptions  of  persons  pursue  their  proper  avocations  and 
affairs  in  good  faith,  conforming  to  those  general  rules  estab- 
lished by  the  conqueror  for  the  safety  of  the  military  interests 
of  the  government,  they  are  left  undisturbed,  or  are  perhaps 
facilitated  in  their  enterprises  ;  it  is  only  when  they  transgress 
and  are  guilty  of  crimes  that  prejudicially  affect  the  military 
interests  that  they  become  amenable  under  the  forty-fifth  and 
forty-sixth  articles,  the  provision  of  law  relating  to  spies,  and 
to  the  common  laws  of  war,  which  are  sufficiently  comprehensive 
in  scope  and  energetic  in  action  to  maintain  in  every  emergency 
the  authority  of  the  military  commander  and  the  interests  of 
the  conquering  State. 

By  the  common  law  crimes  are  local,  to  be  prosecuted  in  the 
county  where  perpetrated  ;  only  in  such  county  can  the  grand 
jury  inquire  of  them.2  And  although  this  provision,  like  most 
other  constitutional  guarantees  for  the  protection  of  alleged 
criminals,  may  be  waived  by  them,  as,  for  instance,  by  change 
of  venue,  such  change  can  only  be  made  with  the  consent  of 
the  defendant.3  But  it  has  been  decided  by  the  Supreme  Court 
of  the  United  States  that  the  Federal  judiciary  can  not  exercise 
common  law  jurisdiction  in  criminal  cases.  To  enable  the 
United  States  courts  to  take  criminal  jurisdiction  it  is  necessary 
in  any  particular  case  for  Congress  to  make  the  act  a  crime,  to 
affix  a  punishment  and  designate  the  court  to  try  it.*     No  law 

i.  5  Op.  Attys.-Gen.,  p.  55;  97  U.  S.,  509;  100  U.  S.,  158;  Clode,  Mil. 
and  Martial  Law,  p.  95.  2.  4  Blackstone,  303.  3.  Bishop,  C.  P., 

vol.  1,  sec.  50.  4.  1   Kent,   335-341  ;    U.  S.   v.   Hudson  &  Goodwin, 

7  Cr.,  32  ;   U.  S.  v.  Bevans,  3  Wheaton,  336. 


LAWS   OBLIGATORY   WITHIN    OCCUPIED   TERRITORY.       121 

of  the  United  States  vests  criminal  courts  with  cognizance  of 
crimes  committed  by  persons  in  territory  under  military  govern- 
ment. Should  they  assume  it  without  legislative  provision  to 
that  effect,  plea  to  the  jurisdiction  would  defeat  prosecution. 

It  is  well  settled  then  that  crimes  being  in  their  nature  local, 
the  jurisdiction  of  crimes  also  is  local.  And  so  as  to  actions 
concerning  real  property,  the  subject  being  fixed  and  immov- 
able. But  not  so  as  to  transitory  actions.  These  embrace  suits 
growing  out  of  debts,  contracts,  and  generally  all  matters 
relating  to  the  person,  including  torts,  or  to  personal  property. 
As  to  them  Lord  Mansfield  said  :  ' '  There  is  not  a  color  of  doubt 
but  that  they  may  be  laid  in  any  county  in  England,  though 
the  matter  arises  beyond  the  seas."  l  This  distinction  between 
local  and  transitory  actions  is  fully  recognized  by  the  courts  of 
this  country.2  It  leads  to  important  consequences  regarding 
the  rights  and  liabilities  of  civilians,  citizens  of  the  conquering 
State,  under  military  government ;  for  while  crimes  committed 
either  by  or  upon  them  must  be  tried  by  military  tribunals 
in  the  conquered  territory  or  not  tried  at  all,  transitory  actions 
there  accruing  may  be  prosecuted  at  home  in  the  civil  courts  of 
the  dominant  government.  An  action  may  be  maintained  in 
the  circuit  court  for  any  district  in  which  the  defendant  may  be 
found,  upon  process  duly  served,  where  the  citizenship  of  the 
parties  give  jurisdiction  to  a  court  of  the  United  States ;  and, 
in  other  cases,  jurisdiction  of  the  parties  being  first  had,  an 
action  may  be  maintained  in  the  proper  State  court.3  What- 
ever, therefore,  may  be  the  nature  of  the  action,  whether  it  be 
local  or  transitory,  whether  it  result  from  crime  perpetrated, 
contracts  broken,  or  personal  injuries  suffered,  the  laws  of  war, 
statutory  or  common,  or  the  courts  of  their  own  country,  fully 
protect  civilians,  citizens  of  the  conquering  State,  who  may  be 
sojourning  temporarily  subject  to  military  government. 

Thirdly  :  neutrals  residing  in  conquered  territory  are  treated 
by  the  conqueror  as  the  laws  of  war  require,  or  as  policy  may 
dictate.4 

He  has  a  right  to  subject  all  found  within  that  territory,  both 
as  to  person  and  property,  to  such  rules  as  he  may  find  neces- 

i.  Mostyn  v.  Fabrigas,  i  Cowper,  161.  2.  McKenna  v.  Fish, 

1  Howard,  241  ;  Garduer  v.  Thomas,  4  Johusou,  134  ;  Glen  v.  Hodges, 
9  Johnson,  67.  3.   13  Howard,  137.  4.   Woolsey,  section  173. 


122  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

sary  to  attain  the  objects  of  the  war.  Until  this  end  be  attained 
he  has,  strictly  speaking,  a  right  to  use  every  proper  means  for 
its  accomplishment.1  The  law  of  nature  has  not  determined 
how  far  precisely  an  individual  is  allowed  to  make  use  of  force, 
either  to  defend  himself  against  a  threatened  injury,  or  to  obtain 
reparation  when  refused  by  the  aggressor,  or  to  bring  an  of- 
fender to  punishment.  The  general  rule  is  that  such  use  of  force 
as  is  necessary  for  obtaining  these  ends  is  not  forbidden.  The 
same  rules  apply  to  the  conduct  of  sovereign  States  while  carry- 
ing on  war  which,  theoretically  at  least  and  in  contemplation 
of  law,  is  an  attempt  to  vindicate  the  right.  No  use  of  force  is 
lawful  or  even  expedient  except  so  far  as  necessary  to  attain  the 
object  in  view.  The  custom  is  to  exempt  certain  persons  from 
the  direct  effects  of  military  operations.  In  dealing  with  neu- 
trals, residents  of  the  conquered  State,  the  conqueror  has,  in 
addition  to  humane  considerations  which  temper  his  treatment 
of  certain  classes  of  the  enemy,  a  motive  for  treating  them  as 
liberally  as  the  laws  of  war  permit  arising  out  of  the  fact  that 
thereby  a  feeling  of  good  will  is  strengthened  between  the  con- 
quering State  and  the  neutral  States  whose  subjects  they  are. 
Sound  policy,  therefore,  as  well  as  humanity  demands  that  in 
so  far  as  it  can  be  done  consistently  with  the  successful  prosecu- 
tion of  the  war,  the  lot  of  neutrals  so  circumstanced  be  made  as 
agreeable  as  possible.  "All  foreigners  not  naturalized  and 
claiming  allegiance  to  their  respective  governments, ' '  said  the 
commanding  general  in  taking  possession  of  New  Orleans  in 
1862,  "  and  not  having  made  oath  of  allegiance  to  the  supposed 
government  of  the  Confederate  States,  will  be  protected  in  their 
persons  and  property  as  heretofore  under  the  laws  of  the  United 
States." 

Yet  with  the  conqueror  the  success  of  his  arms  will  ever  be 
the  primary  consideration.  His  will,  under  military  govern- 
ment, is  law  to  all  alike,  regardless  of  nationality,  within  the 
territory  occupied.  From  the  operation  of  this  first  rule — the 
rule  of  necessity — neutrals  are  not  exempt.  A  military  governor 
is  responsible  only  to  his  superiors.  If  he  invades  the  rights  of 
neutrals  their  remedy,  if  any  they  have,  must  be  sought  through 
their  own  government.     Conquest  being  a  valid  title  while  the 

1.  Wheaton,  International  Law,  section  342. 


LAWS   OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.       1 23 

victor  maintains  exclusive  possession,  citizens  of  no  other  nation 
have  a  right  to  enter  the  territory  without  the  permission  of  the 
conqueror,  or  hold  intercourse  with  its  inhabitants  or  trade 
with  them.1  The  intercourse  of  foreigners  with  such  territory 
is  regulated  by  the  government  of  military  occupation.  The 
victor  may  either  prohibit  all  commercial  intercourse  with  his 
conquest  or  place  upon  it  such  restrictions  and  conditions  as 
may  be  deemed  suitable  to  his  purpose.  To  allow  intercourse  at 
all  is  a  relaxation  of  the  rights  of  war.2 

The  principles  which  govern  the  transactions  of  neutrals  in 
territory  under  military  government  are  well  set  forth  in  the 
opinion  of  the  Supreme  Court  of  the  United  States  in  the  case 
of  the  ship  "  Essex."  3  On  the  12th  of  May,  1862,  after  the  cap- 
ture of  New  Orleans  by  the  Union  forces,  the  President,  having 
become  satisfied  that  the  blockade  existing  against  that  place 
might  safely  be  relaxed  with  advantage,  issued  his  proclama- 
tion to  take  effect  the  istof  June  following,  permitting  commer- 
cial intercourse  therewith  except  as  to  persons,  things  and  in- 
formation contraband  of  war.  The  ship  "  Essex,"  owned  by  a 
citizen  of  a  foreign  Government,  sailed  from  Liverpool  for  New 
Orleans  June  19,  1862,  arriving  August  24  following.  Early  in 
September  the  general  commanding  there  was  informed  that 
large  quantities  of  silver  plate  and  bullion  were  being  shipped 
on  board  the  ' '  Essex  ' '  by  persons  known  to  be  hostile  to  the 
United  States.  He  had  reasonable  cause  to  suppose  that  this 
silver  was  intended  to  pay  for  supplies  furnished  and  to  be  fur- 
nished to  the  rebel  government.  He  therefore  ordered  that  the 
specified  articles  should  be  detained  and  their  exportation  not 
allowed  until  further  instructions  were  given.  They  were  deemed 
to  be  contraband  of  war  ;  and  not  until  they  were  re-landed  from 
the  ship  was  she  granted  a  clearance  and  permitted  to  depart.  By 
joint  resolution  of  Congress,  passed  after  the  war,  the  claimant 
for  damages  caused  by  the  detention  of  the  ship  by  the  mili- 
tary authorities  was  permitted  to  sue  in  the  Court  of  Claims, 
where  judgment  was  given  in  his  favor  ;  on  appeal  to  the 
Supreme  Court  this  judgment  was  reversed. 

The  court  remarked  that  previous  to  June  1 ,  the  ' '  Essex  ' '  was 
excluded  altogether  from  the  port  by  the  blockade.     At  that 

1.  9  Howard,  615.  2.  Halleck,  chap.  32,  sectiou  9. 

3.  92  U.  S.,  520  (U.  S.  v.  Diekelrnau). 


124  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

date  the  blockade  was  removed,  but  relaxed  only  in  the  interests 
of  commerce.  The  city  was  in  fact  a  garrisoned  city,  held  as 
an  outpost  of  the  Union  army,  and  closely  besieged  by  land. 
All  this  was  matter  of  public  notoriety  ;  and  the  claimant  ought 
to  have  known  if  he  did  not  know  that  although  the  United 
States  had  to  some  extent  opened  the  port  in  the  interests  of 
commerce,  they  kept  it  closed  to  the  extent  that  was  necessary 
for  the  vigorous  prosecution  of  the  war.  When  he  entered  the 
port,  therefore,  with  his  vessel  under  the  special  license  of  the 
proclamation,  he  became  entitled  to  all  the  rights  and  privileges 
that  would  have  been  accorded  to  a  loyal  citizen  of  the  United 
States  under  the  same  circumstances,  but  no  more.  Such  re- 
strictions as  were  placed  upon  citizens  operated  equally  upon 
him.  Citizens  were  governed  by  martial  law  [military  govern- 
ment]. It  was  his  duty  to  submit  to  the  same  authority. 
Martial  law  was  declared  by  the  court  to  be  the  law  of  military 
necessity  in  the  actual  presence  of  war.  It  is  administered  by 
the  general  of  the  army  and  is  in  fact  his  will.  Of  necessity  it 
is  arbitrary,  but  it  must  be  obeyed. 

New  Orleans  was  at  this  time  the  theatre  of  the  most  active 
and  important  military  operations.  The  civil  authority  was 
overthrown.  A  complete  system  of  military  government  had 
been  established.  The  general  in  command  was  the  military 
ruler.  His  will  was  law,  and  necessarily  so.  His  first  great 
duty  was  to  maintain  on  land  the  blockade  which  had  thereto- 
fore been  kept  up  by  sea.  To  this  law  and  this  government 
the  "  Essex  "  subjected  herself  when  she  went  into  port.  She 
went  there  for  gain,  and  voluntarily  assumed  all  the  chances  of 
the  war  into  whose  presence  she  came.  By  availing  herself  of 
the  privileges  granted  by  the  proclamation,  she  in  effect  cov- 
enanted not  to  take  out  of  the  port  "persons,  things,  or  infor- 
mation contraband  of  war. ' '  What  is  contraband  depends  upon 
circumstances.  Money  and  bullion  do  not  necessarily  partake 
of  that  character  ;  but  when  destined  for  hostile  use,  or  to  pro- 
cure hostile  supplies,  they  do.  Whether  they  are  so  or  not, 
under  the  circumstances  of  a  particular  case,  must  be  deter- 
mined by  some  one  when  a  necessity  for  action  occurs.  At 
New  Orleans  where  this  transaction  took  place  this  duty  fell 
upon  the  general  in  command.  Military  commanders  must  act 
to  a  great  extent  upon  appearances.     As  a  rule  they  have  but 


LAWS    OBLIGATORY   WITHIN    OCCUPIED    TERRITORY.       1 25 

little  time  to  take  and  consider  testimony  before  deciding. 
Vigilance  is  the  law  of  their  duty.  The  success  of  their  opera- 
tions depends  to  a  great  extent  upon  their  watchfulness.  The 
commanding  general  found  on  board  the  vessel  articles  which 
he  had  reasonable  cause  to  believe,  and  did  believe,  were  con- 
traband, because  intended  for  use  to  promote  the  rebellion.  It 
was  his  duty,  therefore,  under  his  instructions  to  see  that  the 
vessel  was  not  cleared  with  these  articles  on  board,  and  he  gave 
orders  accordingly.  It  matters  not  whether  the  property  sus- 
pected was  in  fact  contraband  or  not.  It  is  sufficient  that  the 
general  had  reason  to  believe,  and  did  believe,  that  it  was 
contraband.  The  vessel  was  not  bound  to  take  out  any  contra- 
band cargo.  She  took  all  the  risks  of  this  obligation  when  she 
assumed  it,  and  was  obliged  to  bear  the  losses  that  followed. 

This  reasoning  of  the  Supreme  Court  was  conclusive.  It 
establishes  upon  principles  not  to  be  shaken  that  neutrals  in 
conquered  territory  must  conform  to  the  laws  of  the  conqueror; 
and  it  sustains  with  clearness,  completeness,  and  force  the  au- 
thority of  generals  in  the  enforcement  of  military  government, 
and  conformably  with  the  laws  of  nations,  to  resort  at  discretion 
to  whatever  measures  are  necessary  to  secure  the  objects  of  the 
war  and  the  triumph  of  their  arms. 

The  case  of  the  ' '  Venice  ' '  further  illustrates  the  right  of  neu- 
trals under  military  government.1  Cooke,  a  British  subject,  had 
resided  in  New  Orleans  and  done  business  there  for  ten  years 
prior  to  the  breaking  out  of  the  rebellion,  and  continued  to  reside 
there  until  after  the  capture  of  the  city.  During  the  early  part 
of  April,  1862,  he  had  purchased  and  stored  there  several  hun- 
dred bales  of  cotton.  Apprehending  danger  from  the  conflagra- 
tion which  might  ensue  in  case  the  city  was  captured,  as  then 
seemed  imminent,  he  purchased  a  vessel  on  which  he  stored  the 
cotton  and  anchored  it  in  an  adjacent  lake  out  of  harm's  imme- 
diate way.  Here,  lying  quietly  at  rest,  the  vessel  was  seized 
by  a  United  States  ship  of  war  soon  after  the  city  fell.  The 
vessel  and  cargo  were  libelled  as  prize  of  war  in  the  United 
States  court  at  Key  West  but  restored  to  the  claimant,  Cooke, 
by  its  decree.  The  United  States  appealed  and  the  decree  was 
affirmed. 

1.   2  Wallace,  258. 


126  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

The  pledge  given  to  neutrals  by  the  general  commanding  the 
invading  army  upon  the  establishment  of  military  government 
at  New  Orleans  in  1862  has  been  mentioned.  The  Supreme  Court 
held  that  the  general  was  fully  warranted  in  making  that  pledge. 
It  comported  with  the  policy  of  the  Government  in  suppressing 
the  rebellion.  Hence,  after  the  pledge  was  given,  vessels  and 
their  cargoes  belonging  to  neutrals  residing  in  New  Orleans  and 
not  affected  by  any  attempts  to  run  the  blockade,  or  by  any  act 
of  hostility  against  the  United  States  after  the  publication  of  the 
proclamation  containing  it,  were  regarded  as  protected  by  its 
terms.  And  the  pledge  alone  saved  the  property.  The  Su- 
preme Court  treated  as  fallacious  and  without  foundation  in 
international  law  the  contention  of  counsel  for  Cooke  that  sim- 
ply because  he  was  a  subject  of  Great  Britain  his  property  had 
immunity  from  capture  under  all  circumstances.  The  vessel 
and  the  cargo  at  the  time  of  the  purchase  were  enemy  property. 
Did  the  transfer  to  Cooke  change  their  character  in  this  respect  ? 
He  was,  indeed,  a  British  subject,  but  identified  with  the  peo- 
ple of  Louisiana  by  long  voluntary  residence  and  by  the  rela- 
tions of  active  business.  Upon  the  breaking  out  of  the  war  he 
might  have  left  the  State  and  withdrawn  his  means,  but  he  did 
not  think  fit  to  do  so.  He  remained  more  than  a  year  engaged 
in  commercial  transactions.  L,ike  many  others,  he  seemed  to 
think  that,  as  a  neutral,  he  could  share  the  business  of  the  ene- 
mies of  the  nation  and  enjoy  its  profits  without  incurring  the 
responsibilities  of  an  enemy.  He  was  mistaken.  He  chose  his 
relations  and  had  to  abide  their  results.  The  ship  and  cargo 
were  as  liable  to  seizure  as  prize  in  his  ownership  as  they  would 
have  been  in  that  of  any  citizen  of  Louisiana  residing  in  New 
Orleans  and  not  actually  engaged  in  active  hostilities  against 
the  Union.1 

Neutrals  residents  of  conquered  territory  are  amenable 
criminally  before  either  local  criminal  courts  maintained  at  the 
pleasure  of  the  conqueror,  or  before  military  tribunals  organ- 
ized by  his  authority.  In  this  respect  they  occupy  a  position 
similar  to  that  of  enemy  subjects  under  the  same  circumstances. 
Yet  practically  there  is  an  important  difference  between  the 
situations  of  these  two  classes,  both  of  which  owe  temporary 

1.  2  Wallace,  275  ;  Young  v.  U.  S.,  97  U.  S.,  pp.  60,  63. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED    TERRITORY.       1 27 

allegiance  to  the  military  government.  The  position  of  the 
neutral  is  the  more  eligible.  Not  until  the  laws  of  war  are 
transgressed  could  enemy  subjects,  with  show  of  reason  or  hope 
of  success,  appeal  to  the  government  of  their  permanent  al- 
legiance which  can  only  secure  an  amelioration  of  their  con- 
dition through  harsh  and  forbidding  measures  of  retaliation. 
Neutrals  have  more  liberty  of  action.  They  with  greater  as- 
surance of  relief  appeal  to  their  own  government  through  repre- 
sentations to  the  conquering  State  for  justice  against  wrongs, 
real  or  imaginary,  suffered  at  the  hands  of  the  government  of 
military  occupation.  Nor  are  neutral  States  as  a  rule  inclined 
to  ignore  complaints  of  their  subjects  domiciled  in  foreign  ter- 
ritory which  has  temporarily  passed  under  the  rule  of  a  friendly 
power. 

In  regard  to  transitory  actions  accruing  to  neutrals  under  the 
circumstances  here  supposed,  it  seems  that  they  are  in  the  same 
category  with  civilians,  citizens  of  the  government  of  military 
occupation.  Courts,  as  a  rule,  make  no  distinction,  so  far  as  juris- 
diction is  concerned,  between  causes  in  which  the  parties  are 
foreigners  and  those  in  which  they  are  subjects.  A  court  which  is 
competent  when  the  parties  are  subjects  is  competent,  other 
things  being  the  same,  when  the  parties  are  foreigners.  And 
while  it  is  said  that  the  principle  has  been  pushed  too  far  the 
practice  of  taking  cognizance  in  all  transitory  actions  in  which 
the  defendant  is  summoned  within  the  jurisdiction  is  too  deeply 
seated  now  to  be  shaken.1 

1.  Wharton,  Conflict  of  Laws,  sections  705,707,  712  ;  McKenna  a  Fish, 
1  Howard,  241  ;  Mitchell  v.  Harmony,  13  How.,  137  ;  Wharton,  Inter- 
national Law,  section  113. 


128  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 


CHAPTER   X. 

RIGHTS    REGARDING    PRIVATE    PROPERTY. 

Second  in  importance  to  considerations  affecting  the  personal 
relations  of  the  enemy  under  military  government  are  those 
concerning  his  property.  The  ancient  rule  forfeited  alike  the 
life  and  property  of  a  captured  enemy.  With  the  progress  of 
civilization,  particularly  under  the  influence  of  christian  pre- 
cepts, the  rigors  of  the  rule  have  gradually  been  relaxed.1 

From  the  moment  one  State  is  at  war  with  another  it  has, 
strictly,  even  under  the  modern  view,  a  right  to  seize  all  enemy's 
property  and  appropriate  it  to  its  own  use,  or  to  that  of  the 
captors.2  The  only  care  of  the  State  in  enforcing  this  right  is 
directed  to  seeing  that  neutral  territory  is  not  violated. 

We  will  first  consider  the  case  of  private  enemy  property. 
This  belligerent  right  may  be  enforced  by  confiscation,  by  tak- 
ing the  property  as  booty  of  war,  or  as  contributions.3 

Writers  on  the  laws  of  nations  have  given  various  views  as 
to  the  right  to  confiscate  enemy  property.  Bynkershoek  main- 
tains the  right  without  limitation,  while  Vattel  in  important 
particulars  denied  it.4  But  upon  principle,  the  right  would 
seem  to  be  clear.  The  very  object  for  which  war  is  waged 
would  apparently  give  a  belligerent  a  right  to  deprive  an  enemy 
of  his  possessions  or  anything  else  which  may  augment  his 
warlike  strength.  Each  belligerent  endeavors  as  against  the 
enemy  to  accomplish  this  in  the  manner  most  agreeable  to  him- 
self. So  long  as  the  principle  that  no  force  is  to  be  used  which 
does  not  directly  contribute  to  the  success  of  its  arms  is  kept  in 
view,  why  should  not  a  belligerent  at  every  opportunity  seize 
on  enemy  property  and  convert  it  to  his  own  use  ?  Besides 
diminishing    the  enemy's  power,   he  augments    his  own  and 

i.  Rluutschli  I,  sec.  29;  Manning,  p    179.  2.  Yv'heaton,  part  4,  sec. 

346  ;  BlnntschliJ,  sec.  7  ;  8  Cranch,  279;  Twiss,  p.  123  ;  Manning,  p.  169  ; 
Ibid.,  p.  182.  3.  Twiss,  Law  of  Nations,  p.  124.  4.  See  Kent,  I, 

56  ;  Vattel,  hk.  3,  ch.  4,  sec.  63. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 29 

obtains  at  least  a  partial  indemnification  or  equivalent,  either 
for  what  constitutes  the  subject  of  the  war,  or  for  the  expenses 
or  losses  incurred  in  its  prosecution.1  But  whatever  may  be 
the  views  with  which  publicists  and  speculative  writers  may 
please  their  fancy,  the  practice  of  nations  is  to  assert  and 
enforce  the  rule  that  confiscation  is  lawful.  The  many  treaties 
existing  between  nations  modifying  the  right  as  to  certain 
persons  under  particular  circumstances  impliedly  admit  the 
integrity  of  the  rule.'2 

"A  conquering  State,"  says  Manning,  "enters  upon  the 
rights  of  the  sovereign  of  a  vanquished  State  ;  national  revenues 
pass  to  the  victor,  but  the  immovable  property  of  private  individ- 
uals is  not  liable  to  be  seized  by  the  rights  of  war.  With  regard 
to  movable  property  the  law  is  not  so  moderate  in  its  treatment ; 
movable  property  is  still  considered  as  liable  to  seizure.  This 
right  the  invader  compounds  for  requisitions  and  forced  con- 
tributions ;  and,  as  long  as  these  are  supplied,  all  other  mov- 
able property  is  respected  by  the  hostile  force,  except  in  towns 
taken  by  assault  or  as  punishment  for  enemy's  conduct."  He 
then  points  out,  what  experience  has  so  often  proved  to  be  true, 
that  requisitions  regularly  made  in  a  hostile  country  have  a 
great  advantage  over  pillage  ;  to  the  invader,  because  it  sup- 
plies him  regularly  ;  and  to  the  people,  who  have  then  to 
furnish  only  what  the  army  reasonably  requires.3 

The  right  to  confiscate  enemy  property  has  been  judicially 
determined.  In  the  case  of  Brown  v.  the  United  States  the 
principle  was  assumed  by  the  Supreme  Court  that  war  gave  a 
belligerent  the  right  to  seize  the  persons  and  confiscate  the 
property  of  the  enemy  wherever  found  ;  and  while  the  mitiga- 
tions of  this  rigid  rule,  which  modern  practices  have  introduced, 
might  more  or  less  affect  the  exercise  of  the  right,  they  could 
not  impair  the  right  itself.  That  remains  perfect,  and  when 
the  sovereign  authority  shall  choose  to  bring  it  into  operation 
the  judicial  department  gives  effect  to  its  will.  Until  that 
shall  be  expressed  the  judicial  power  of  condemnation  does  not 
exist.  In  the  opinion  of  the  court  the  power  of  confiscating 
enemy  property  is  in  the  legislature,  and  without  a  legislative 
act  authorizing  confiscation   it   could   not   be  judicially   con- 

1.  Manning,  pp.  182-3.         2-  Kent,  I,  p.  56,  note  1.         3.  Pp.  1S2-3. 


130  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

deraned  ;  further,  that  the  act  of  Congress  of  1812,  declaring 
war  against  Great  Britain,  was  not  such  an  act;  something 
further  was  necessary.1 

The  property  in  this  case  was  on  land,  was  that  of  a  British 
subject,  was  located  within  the  territory  of  the  United  States, 
and  was  in  the  custody  of  an  American  citizen.  The  court 
held  that  the  rule  for  the  case  must  be  one  that  could  be  ap- 
plied to  all  private  property.  Having  decided  that  such  prop- 
erty was  subject  to  forfeiture  by  the  law  of  nations,  the  only 
question  remaining  was  one  of  municipal  or  constitutional  law; 
that  is,  of  the  validity  and  authority  of  the  proceedings  under 
the  Constitution  of  the  United  States.  In  interpreting  the 
Constitution  the  court,  on  points  of  public  and  general  interest, 
looked  at  it  in  the  light  of  international  law.  Viewed  in  that 
light,  the  existence  of  war  could  not  be  held  by  its  own  force 
and  vigor  to  transfer  the  title  in  enemy  property  to  the  United 
States  ;  it  only  clothed  the  government  with  the  right  to  con- 
fiscate or  not  at  its  option. 

The  court  divided  upon  the  consequences  of  this  doctrine. 
Judge  Story,  with  the  minority,  held  that  the  right  to  confiscate 
existing,  the  power  to  enforce  confiscation  in  each  case  belonged 
to  the  Executive  Department  of  the  government  as  an  applica- 
tion of  known  rules  of  war.  It  was  in  this  view  of  the  case  a 
part  of  the  same  power  under  which  the  Executive,  on  the  dec- 
laration of  war,  establishes  blockades,  orders  the  capture  of 
enemy  property  at  sea,  and  of  contraband  goods.  But  the 
majority  held  that  the  Executive  could  not  order  confiscation 
unless  the  will  of  the  nation  to  that  effect  had  been  expressed 
by  the  authoritative  organ,  which  was  Congress. 

This  decision  asserted  the  right  to  confiscate  private  property 
of  enemy  subjects  contrary  to  much  modern  practice  and  au- 
thority. The  point  that  was  gained  over  the  ancient  and 
violent  rule  consisted  in  the  rendering  a  special  act  of  Congress 
necessary  to  authorize  confiscation.'2 

Confiscation  of  private  enemy  property,  which  is  thus  judici- 
ally determined  the  modern  laws  of  war  sanction,  is  not  for 
punishment  of  crime.  It  results  from  the  relation  of  the  prop- 
erty to  the  opposing  belligerent  ;  a  relation  in  which  it  has  been 

1.  8  Crancb,  no. 

2.  Wheatou,  part  4,  sec.  304,  Dana's  note,  156  ;  Kent,  I,  60. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  131 

brought  because  of  its  ownership.  It  is  immaterial  whether 
the  owner  be  an  alien  or  a  friend,  or  even  a  citizen  or  subject 
of  the  power  that  appropriates  the  property.  A  resident  of  a 
hostile  country,  whatever  his  nativity  or  allegiance,  is  regarded 
as  a  subject  of  that  country,  and  is  considered  by  that  residence 
as  having  a  hostile  character  impressed  upon  him.1  His  prop- 
erty is  liable  to  confiscation  under  the  laws  of  war  regardless 
of  nationality.  The  whole  doctrine  of  confiscation  is  built  upon 
the  idea  that  it  is  a  means  of  coercion,  which,  by  depriving  an 
enemy  of  property,  whether  located  within  his  territory  or  out- 
side of  it,  impairs  his  ability  to  resist  the  appropriating  govern- 
ment, while  at  the  same  time  it  furnishes  the  latter  with  means 
for  carrying  on  the  war.  Hence  any  property  which  the  enemy 
can  use,  either  by  actual  appropriation  or  by  the  exercise  of 
control  over  its  owner,  or  which  the  adherents  of  the  enemy 
have  the  power  of  devoting  to  the  enemy's  use,  is  a  proper 
subject  of  confiscation.2 

Such  is  the  rule  when  war  is  waged  between  independent 
States.  The  rights  of  confiscation  are  the  same  in  the  case  of 
civil  war.  The  general  usage  of  nations  regards  such  a  war  as 
entitling  both  the  contending  parties  to  all  the  rights  of  war 
each  as  against  the  other,  and  even  as  it  respects  neutral  na- 
tions.3 Certainly  because  the  war  is  civil  the  legitimate  gov- 
ernment is  shorn  of  none  of  those  rights  which  belong  to  bellig- 
erency. It  would  be  absurd  to  hold  that  while  in  a  foreign 
war  enemy's  property  may  be  captured  and  confiscated  as  a 
means  of  bringing  the  struggle  to  a  successful  completion,  in  a 
civil  war  requiring  quite  as  urgently  the  use  of  all  available 
means  to  weaken  those  in  arms  against  the  legitimate  govern- 
ment, the  right  to  confiscate  property  which  may  strengthen 
the  rebels  does  not  exist.  There  is  no  such  distinction  to  be 
made.  Every  reason  for  the  allowance  of  a  right  to  confiscate 
in  case  of  foreign  wars  exists  in  full  force  when  the  war  is  do- 
mestic or  civil. 

The  power  of  Congress  to  legislate  regarding  confiscation  of 
enemy  property  is  found  in  that  clause  of  the  Constitution 
granting  the  legislature  power  to  make  rules  concerning  cap- 
tures on  land  and  water.4     It  is  a  branch  of  what  the  Supreme 

1.  The  Venus,  8  Cr.,  279.  2.   Miller  v.  U.  S.,  11  Wall.,  305-'6. 

3.  Wheaton,  pt.  4,  ch.  1,  sec.  296.  4.  Act  1,  sec.  8,  cl.  10. 


132  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

Court  of  the  United  States  has  called  ' '  the  war  powers  of  the 
Government. ' '  Upon  the  exercise  of  these  powers  no  restric- 
tions are  imposed.  They  include  the  power  to  prosecute  war 
by  all  means  in  which  it  legitimately  may  be  waged.  If  there 
were  any  doubt  as  to  this,  including  the  right  to  seize  and  con- 
fiscate all  property  of  an  enemy,  it  is  set  at  rest  by  the  express 
grant  of  the  power  mentioned  to  make  rules  respecting  cap- 
tures.1 

During  the  foreign  wars  waged  by  the  United  States,  under 
the  government  of  the  Constitution,  no  acts  of  Congress  have 
provided  for  the  confiscation  of  enemy  property.  That  prop- 
erty has  indeed  been  appropriated.  But  it  was  done  under  the 
direction  of  the  Executive  Department  in  conformity  with  the 
laws  of  war.  During  the  Civil  War,  however,  this  power  of 
Congress  was  freely  and  firmly  exercised.  Yet  so  benignantly 
was  it  used  as  to  excite  admiration  for  the  magnanimous  meas- 
ures of  government  at  a  time  when  it  was  engaged  in  a  desper- 
ate struggle  for  existence.  Judicial  decision  advanced  at  equal 
pace  with  legislative  action,  marking  a  clear  path  for  the  guid- 
ance of  those  upon  whom  may  devolve  hereafter  the  duty  of 
determining  the  belligerent  policy  of  the  nation.  "Property 
in  the  insurgent  States,"  said  the  Supreme  Court  in  United 
States  v.  Klein,1'  "may  be  distributed  into  four  classes:  1st, 
that  which  belonged  to  the  hostile  organizations  or  was  em- 
ployed in  actual  hostilities  on  land  ;  2d,  that  which  at  sea  be- 
came lawful  subject  of  capture  and  prize  ;  3d,  that  which  be- 
came the  subject  of  confiscation  ;  4th,  a  peculiar  description, 
known  only  in  the  recent  war,  called  captured  and  abandoned 
property.  The  first  of  these  descriptions  of  property,  like  prop- 
erty of  other  similar  kinds  in  ordinary  international  wars,  be- 
came, wherever  taken,  ipso  facto,  the  property  of  -the  United 
States.  The  second  comprehends  ships  and  vessels  with  their 
cargoes  belonging  to  the  insurgents  or  employed  in  aid  of  them; 
but  property  in  these  was  not  changed  by  capture  alone  but  by 
regular  judicial  proceeding  and  sentence.  Almost  all  the  prop- 
erty of  the  people  in  the  insurgent  States  was  included  in  the 
third  description,  for  after  sixty  days  from  the  date  of  the 
President's  proclamation  of  July  25th,  1862, 8  all  the  estates  and 

1.  11  Wallace,  305.  2.   13  Wallace,  136.  3.  12  Stat,  at  Large,  1266. 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  1 33 

property  of  those  who  did  not  cease  to  aid,  countenance,  and 
abet  the  rebellion  became  liable  to  seizure  and  confiscation,  and 
it  was  made  the  duty  of  the  President  to  cause  the  same  to  be 
seized  and  applied  either  specifically  or  in  the  proceeds  thereof 
to  the  support  of  the  army.1  But  it  is  to  be  observed  that  tri- 
bunals and  proceedings  were  provided  by  which  alone  such 
property  could  be  condemned,  and  without  which  it  remained 
unaffected  in  the  possession  of  the  proprietors. ' ' 

The  first  act  authorizing  the  confiscation  of  rebel  property 
was  that  of  August  6,  1861.2  It  provided  that  if,  during  the 
then  existing  or  any  future  insurrection  against  the  govern- 
ment, after  proclamation  by  the  President  that  the  laws  of  the 
United  States  are  opposed  by  combinations  too  powerful  to  be 
suppressed  by  the  ordinary  machinery  of  government  author- 
ized for  that  purpose,  then  that  all  property  of  whatsoever  kind 
or  description  used  with  the  consent  of  the  owner  to  further  the 
interests  of  the  insurrection  should  be  lawful  subject  of  prize 
or  capture  wherever  found,  and  it  was  made  the  duty  of  the 
President  to  cause  the  same  to  be  seized,  confiscated,  and  con- 
demned. Proceedings  for  condemnation  were  to  be  prosecuted 
by  the  Attorney-General  or  district  attorneys  of  the  United 
States  where  the  property  might  at  the  time  be,  and  before  a 
district  or  circuit  court  of  the  United  States  having  jurisdic- 
tion of  the  amount.  The  act  extended  to  all  descriptions  of 
property,  real  or  personal,  on  land  or  on  water.  The  Supreme 
Court  decided  that  its  enactment  was  in  virtue  of  the  war 
powers  of  the  government.  It  defined  no  crime.  It  imposed 
no  penalty.  It  declared  nothing  unlawful.  It  was  not,  there- 
fore, a  mere  municipal  regulation  for  the  punishment  of  crime. 
It  was  aimed  exclusively  at  the  seizure  and  confiscation  o 
property  used,  or  intended  to  be  used,  to  aid,  abet,  or  promote 
the  rebellion,  then  a  war,  or  to  maintain  the  war  against  the 
government.3     It  treated  the  property  as  the  guilty  subject. 

The  second  confiscation  act  was  that  of  July  17,  1862.4  The 
fifth  section  enacted  that  to  insure  the  speedy  termination  of 
the  rebellion  it  was  made  the  duty  of  the  President  to  cause 
the   seizure  of  all  the  estates   and  property,  money,  stocks, 

1.  Act  July  17,  1862,  12  Stat,  at  Large,  590. 

2.  Chap.  60,  12  Stat,  at  Lg.,  319-  3.   n  Wallace,  308. 
4.  Ch.  195,  sees.  5,  6,  12  Stat,  at  Lg.,  590-'!. 


134  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

credits,  and  effects  of  any  person  thereafter  acting  as  an  officer 
of  the  rebel  army  or  navy,  President,  Vice-President,  member 
of  Congress,  judge  of  any  court,  cabinet  officer,  foreign  minis- 
ter, commissioner  or  counsel  of  the  so-called  Confederate  States, 
any  one  acting  as  governor,  member  of  a  convention  or  legisla- 
ture, or  judge  of  any  court  of  any  of  the  so-called  Confederate 
States,  or  any  person  who,  having  held  an  office  of  honor,  trust, 
or  profit  under  the  United  States  should  thereafter  hold  an 
office  in  the  so-called  Confederate  States,  any  person  thereafter 
holding  office  or  agency  under  the  authority  of  the  said  States 
or  any  of  them,  or  any  one  in  the  loyal  portions  of  the  United 
States  who  should  thereafter  assist  and  give  aid  and  comfort  to 
the  rebellion,  and  to  apply  and  use  the  same  and  the  proceeds 
thereof  for  the  support  of  the  army  of  the  United  States.  The 
sixth  section  provided  that  all  persons  other  than  those  before 
named,  within  any  State  or  Territory  of  the  United  States 
being  engaged  in  armed  rebellion  against  the  government 
thereof,  or  aiding  or  abetting  such  rebellion,  and  not  ceasing  so 
to  do  and  returning  to  his  allegiance  within  sixty  days  after 
proclamation  duly  made  by  the  President,  should  in  like 
manner  forfeit  his  property.  Proceedings  in  rem.  for  the  con- 
demnation of  such  property  were  to  be  pursued  before  any  dis- 
trict court  of  the  United  States,  of  the  District  of  Columbia,  or 
a  Territorial  court  where  any  of  the  property  might  be  found. 
These  two  confiscation  acts  were  carefully  and  elaborately 
considered  by  the  Supreme  Court,  and  pronounced  constitu- 
tional.1 In  so  far  as  they  provided  for  the  confiscation  of  rebel 
property  it  was  remarked  that  they  were  an  exercise  of  the  war 
powers  of  the  government,  and  not  of  its  sovereignty  or  muni- 
cipal power.  Consecpiently  they  were  not  in  conflict  with  the 
restrictions  of  the  fifth  and  sixth  amendments.  Those  who 
were  engaged  in  acts  of  rebellion  within  the  purview  of  these 
acts  were  enemies  of  the  United  States  under  the  law  of  nations. 
They  were  therefore  subject  to  all  laws  applicable  to  such 
enemies,  including  those  for  the  confiscation  of  property. 
Whatever  may  be  true  in  regard  to  a  rebellion  of  lesser  magni- 
tude it  must  be  that  when  it  has  become  a  recognized  war  those 
who  are  engaged  in  it  are  to  be  regarded  as  enemies.     Nor  were 

I.  Miller  v.  TJ.  S.,  n  Wallace,  308. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  135 

those  alone  enemies  who  were  inhabitants  of  the  rebel  States. 
In  a  foreign  war  those  who  reside  in  enemy  territory  are  not 
alone  enemies.  It  is  trne  that  the  presumption  is  that  all  such 
residents  are  enemies,  even  though  not  participants  in  the  war 
and  though  subjects  of  a  neutral  State,  or  even  subjects  or 
citizens  of  the  government  prosecuting  the  war  against  the 
State  within  which  the}7  reside.  But  that  does  not  exhaust  the 
list  of  those  who  may  be  considered  enemies  and  proceeded 
against  accordingly.  Those  may  be  enemies  under  the  laws  of 
nations  who  are  not  residents  of  the  enemy  territory.  They 
may  be  more  potent  and  dangerous  foes  than  though  they  were 
such  residents.  By  uniting  themselves  to  the  enemy's  cause 
they  cast  in  their  lot  with  his.  They  can  not  be  permitted  to 
claim  exemptions  which  the  subjects  of  the  enemy  do  not  pos- 
sess. Depriving  them  of  their  property  is  a  blow  against  the 
hostile  power  quite  as  effective,  tending  as  directly  to  weaken 
the  belligerent  with  whom  they  act  as  would  be  confiscating  the 
property  of  a  non-combatant  resident.  This  is  the  established 
law  of  nations  in  case  of  a  foreign  war.  Those  are  placed  in  the 
category  of  enemies  who  act  with,  or  aid  or  abet  or  give  comfort 
to  the  opposing  belligerent,  though  they  may  not  be  residents 
of  enemy's  territory.  The  court  therefore  concluded  that  all 
the  classes  of  persons  described  in  the  preceding  confiscation 
acts  were  enemies  within  the  laws  and  usages  of  war,  because 
the  principles  applicable  in  case  of  a  foreign,  determine  likewise 
who  are  enemies  in  a  civil  war.  Therefore,  not  only  those  who 
resided  in  the  insurrectionary  States,  but  those  who  inhabited 
loyal  districts,  yet  who  assisted,  aided,  and  gave  comfort  to  the 
rebellion,  were  enemies  whose  property  was  subject  to  confisca- 
tion in  the  manner  pointed  out  in  the  acts.1 

It  it  particularly  worthy  of  notice  that,  in  no  instance,  was 
property  to  be  confiscated  under  the  terms  of  these  acts  except 
upon  condemnation  by  decree  of  the  civil  courts. 

The  confiscation  acts  were  rendered  necessary  by  the  obsti- 
nacy and  magnitude  of  the  resistance  to  the  supremacy  of  the 
national  authority.  To  overcome  this  resistance  and  to  carry 
on  the  war  successfully  the  entire  people  of  the  States  in  rebel- 
lion, as  well  as  those  in  loyal  States  who  aided  the  rebellion, 

1.    11  Wallace,  3o6-'i3. 


136  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

were  considered  public  enemies.1  But  it  was  well-known  that 
man}'  persons  whom  necessity  required  should  be  treated  as 
enemies  were  in  fact  friends,  and  adhered  with  fidelity  to  the 
national  cause.  Compelled  to  live  among  those  who  were  com- 
bined to  overthrow  the  government,  those  of  this  class  who 
lived  in  insurrectionary  territory  were  liable  at  all  times  to  be 
stripped  of  their  property  by  rebel  authorities.  Although 
technically  enemies  the  National  Government  resolved  in  every 
way  possible  to  treat  them  as  friends.2  No  more  acceptable 
method  of  doing  this  could  be  devised  than  one  which  would 
secure  them  remuneration  for  their  property  sacrificed  during 
the  progress  of  the  war.  This  was  done  by  the  act  of  March 
12th,  1863,  commonly  known  as  the  abandoned  and  captured 
property  act.3 

As  the  war  progressed  the  Union  forces  in  the  field  captured 
much  property,  and  much  remained  in  the  country  when  the 
enemy  retreated  without  apparent  ownership.  It  was  right 
that  all  this  property  should  be  collected  and  disposed  of. 
While  providing  for  this  Congress  recognized  the  status  of  the 
loyal  southern  people,  and  distinguished  between  the  property 
owned  by  them  and  the  property  of  the  disloyal.  By  the  act 
just  mentioned  the  government  was  constituted  a  trustee  for  so 
much  of  the  property  as  belonged  to  the  former  class,  and, 
while  directing  that  all  should  be  sold  and  the  proceeds  paid 
into  the  Treasury,  gave  to  this  class  an  opportunity,  at  any 
time  within  two  years  after  the  suppression  of  the  rebellion,  of 
bringing  suit  in  the  Court  of  Claims  and  establishing  their 
right  to  the  proceeds  of  that  portion  of  it  which  they  owned, 
requiring  from  them  nothing  but  proof  of  loyalty  and  owner- 
ship.4 This  beneficent  measure  was  indeed  general  in  its  terms, 
protecting  alike  all  loyal  owners  of  property  whether  residing 
north  or  south,  but  the  moving  cause  prompting  to  it  was  the 
trying  situation  of  loyal  southerners,  who  amidst  greatest  dif- 
ficulties heroically  adhered  to  the  Union  cause,  and  practically 
it  was  for  their  benefit  alone  that  the  law  was  enacted. 

1.  See  ante,  and  Miller  v.  U.  S.,  11  Wallace,  3o6-'i3  ;  U.  S.  v.  Ander- 
son, 9  Wallace,  64. 

2.  Instructions  to  U.  S.  Armies  in  the  Field,  section  10,  clauses  7,  8. 

3.  Ch.  120,  Stat,  at  Lg.,  12,  820.  4.  9  Wallace,  65. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  I37 

The  property  thus  abandoned  or  captured  was  to  be  collected 
by  special  agents  of  the  Treasury,  and  the  only  property  so 
abandoned  or  captured  in  the  insurrectionary  districts  not  made 
subject  to  collection  in  this  manner  was  that  which  either  had 
been  used  or  was  intended  to  be  used  for  waging  or  carrying  on 
war  against  the  United  States,  such  as  arms,  ordnance,  ships, 
steamboats,  or  other  water-craft,  and  the  furniture,  forage,  mili- 
tary supplies,  or  other  munitions  of  war. 

This  last  description  of  property  upon  coming  into  the  pos- 
session of  the  Union  authorities  was  at  once  under  the  laws  of 
war  forfeited  to  the  United  States.  Nor  did  the  act  of  March 
12th,  1863,  apply  to  any  lawful  maritime  prize  by  the  naval 
forces  of  the  United  States  ;  but  all  persons  in  the  military  ser- 
vice, without  distinction,  and  members  of  the  naval  service 
upon  the  inland  waters  into  whose  possession  such  abandoned 
property,  or  cotton,  sugar,  rice,  or  tobacco  should  come,  were 
required  to  turn  the  same  over  to  the  special  agents  of  the 
Treasury  before  mentioned.  It  was  further  provided  that  all 
property  coming  into  loyal  from  insurrectionary  districts, 
through  or  by  any  other  persons  than  these  agents  or  a  lawful 
clearance  by  the  proper  Treasury  official,  should  be  confiscated 
to  the  use  of  the  Government.  While  the  confiscation  acts 
were  considered  penal,  that  now  under  consideration  has  been 
regarded  as  remedial  in  its  nature,  and  has  universally  received 
an  interpretation  by  the  Supreme  Court  of  the  United  States 
in  accord  with  the  generous  spirit  which  prompted  Congress 
to  pass  the  law.1 

The  acts  of  August  6,  1861,  and  July  17,  1862,  before  cited, 
provide  for  confiscating  private  property  only.  In  no  instance 
were  titles  divested  unless  in  pursuance  of  a  judgment  rendered 
after  due  legal  proceedings.  The  government  recognized  to 
the  fullest  extent  the  modern  law  of  nations  which  exempts 
private  property  of  non-combatant  enemies  from  capture  as 
booty  of  war.  Even  the  right  to  confiscate  property  under 
these  acts  was  sparingly  exercised.  The  cases  were  few  indeed 
in  which  the  property  of  any  not  engaged  in  actual  hostilities 
was  subjected  to  seizure  and  sale.2 

1.  6  Wallace,  56  ;  Ibid.,  531  ;  13  Ibid.,  138. 

2.  U.  S.  v.  Klein,  13  Wallace,  137. 


138  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

The  duty  of  determining  what  enemy  property  is  subject  to 
confiscation  rests  exclusively  with  Congress  ;  still,  as  under  the 
laws  of  war,  a  commander  has  an  unquestioned  right  to  seize 
and  appropriate  to  the  public  service  the  private  property  of 
enemies,  as  well  as  public  property  of  the  opposing  belligerent, 
when  emergencies  demand  the  exercise  of  that  power,  it  be- 
comes under  military  government  an  interesting  question  as  to 
where  the  boundary  line  lies  between  this  exclusive  power  of 
Congress  and  the  rights  of  the  commander  under  the  laws  of 
war.  The  right  to  confiscate  does  not  belong  to  any  military 
commander.  He  has  no  original  authority  in  the  premises.  If 
he  confiscate  property  at  all,  it  will  be  pursuant  to  the  provis- 
ions of  statutory  law,  and  not  the  laws  of  war. 

The  decision  of  the  Supreme  Court  declaring  illegal  the 
action  of  the  military  commander  at  New  Orleans  who  attempted 
in  1863  to  confiscate  certain  moneys  or  credits  held  by  the 
banks  in  that  city  for  the  benefit  of  rebels  or  rebel  corporations, 
has  been  mentioned.1  The  decision  was  based  upon  two 
grounds  :  first,  because  of  the  pledge  given  by  the  captor  in 
taking  possession  the  city  that  rights  of  property  of  whatever 
kind  would  be  held  inviolate,  subject  only  to  the  laws  of  the 
United  States,  and  the  order  in  question  was  a  violation  of  that 
pledge  ;  second,  because  it  was  an  attempt  to  confiscate  private 
property  and  not  a  seizure  for  the  immediate  use  of  the  army, 
nor  an  attempt  to  seize  it  flagrante  bello.  The  pledge  men- 
tioned did  not  exempt  property  from  liability  to  confiscation  if 
in  truth  it  was  enemy's  property;  but  after  it  was  given, 
private  property  there  situated  was  not  subject  to  military 
.seizure  as  booty  of  war.  "  But  admitting  as  we  do,"  said  the 
court,  "that  private  property  remained  subject  to  confiscation, 
and  also  that  the  proclamation  [of  the  captor  of  the  city]  ap- 
plied exclusively  to  the  inhabitants  of  the  district,  it  is  unde- 
niable that  confiscation  was  possible  only  to  the  extent  and  in 
the  manner  provided  by  the  acts  of  Congress  of  August  6,  1861, 
and  July  17,  1862.  No  others  authorized  the  confiscation  of 
private  property,  and  they  prescribed  the  manner  in  which 
alone  confiscation  could  be  made.  They  designated  govern- 
ment agents   for  seizing  enemy's  property,  and  they  directed 

1.  Ante,  p.  36. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  I39 

the  mode  of  procedure  for  its  condemnation  in  the  courts.  The 
system  devised  was  necessarily  exclusive.  No  authority  was 
given  a  military  commandant  as  such  to  effect  any  confisca- 
tion. And  under  neither  of  the  acts  was  the  property  of  a 
banking  institution  made  confiscable. ' ' 

Congress  is  authorized  to  make  all  rules  concerning  property 
of  every  kind  captured  either  from  individual  enemies  or  from 
the  opposing  belligerent  government.  But  the  Executive 
Department,  as  its  officers  command  the  armies  in  enemy  terri- 
tory, must  judge  of  the  measures  essential  to  success  ;  and 
unless  restrained  by  legislation,  they  have  only  to  consider 
whether  their  measures  are  in  accord  with  the  acknowledged 
laws  of  war.  Upon  them  rests  responsibility  for  the  success  of 
the  national  arms,  beating  the  enemy  in  the  field,  overrunning 
his  territory,  and  destroying  the  sources  of  his  power.  They 
are  indeed  forbidden  to  confiscate  enemy  property  unless  pre- 
viously authorized  by  law.  If  the  legislature  interposes,  its 
mandate  must  be  obeyed.  But  if  this  be  not  done  commanders 
under  the  laws  of  war  are  permitted  to  appropriate  enemy 
property  which  may  come  into  their  possession,  if  either  the 
exigency  of  the  public  service  demands  or  expediency  counsels 
it.  This  is  one  of  the  incidental  powers  which  attaches  to  a 
commander  conducting  a  campaign  in  enemy  country.  If 
aught  be  disapproved  by  the  legislature,  it  is  within  their 
power  to  narrow  the  field  within  which  belligerent  rights  shall 
be  exercised.  Until  such  limits  be  assigned,  the  President  and 
military  commanders  under  him  must  have  every  authority 
which  the  laws  of  war  attach  to  their  stations  to  be  used  in 
their  sound  discretion. 

Without  this  the  Executive  Department  would  be  shorn  of 
the  means  of  successfully  prosecuting  hostilities  ;  and  as  to 
that  department  the  nation  has  confided  the  duty  of  conducting 
all  military  operations,  it  must  be  given  the  incidental  powers 
necessary  to  perform  that  duty  with  promptness  and  success. 
This  conclusion  flows  from  well-recognized  principles.  The 
whole  executive  power  of  the  nation  being  vested  in  the  Presi- 
dent, who,  in  carrying  on  war  of  necessity  generally  acts  through 
subordinate  commanders,  a  sound  construction  of  the  Consti- 
tution must  allow  to  the  President  and  these  subordinates  a 
discretion  with  respect  to  the  means  by  which  the  powers  it 


140  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

confers  are  to  be  carried  into  execution,  and  which  will  enable 
them  to  perform  their  duties  in  the  most  effective  manner.1 

The  rule  has  the  sanction  of  practice  in  war,  is  confirmed  by 
the  writings  of  publicists,  and  by  decisions  of  the  highest  courts. 
In  September,  1862,  a  subordinate  military  commander  in 
Louisiana  seized  the  private  property  of  one  of  the  inhabitants 
for  the  use  of  the  troops.  Suit  was  entered  against  the  officer, 
and  the  cause  finally  coming  before  the  Supreme  Court  of  the 
United  States,  that  tribunal  in  the  course  of  its  opinion  re- 
marked, ' '  there  could  be  no  doubt  of  the  right  of  the  army 
to  appropriate  any  property  there,  although  belonging  to  pri- 
vate individuals,  which  was  necessary  for  its  support  or  con- 
venient for  its  use.  This  was  a  belligerent  right  which  was 
not  extinguished  by  the  occupation  of  the  country  although 
the  necessity  for  its  exercise  was  thereby  lessened.  However 
exempt  from  seizure  on  other  grounds  private  property  may 
have  been,  it  was  always  subject  to  be  appropriated  when  re- 
quired by  the  necessities  or  convenience  of  the  army,  though 
the  owner  of  the  property  taken  in  such  case  may  have  had  a 
just  claim  against  the  government  for  indemnity. ' '  2  What  shall 
be  the  subject  of  capture,  as  against  his  enemy,  is  always 
within  the  control  of  every  belligerent.  Whatever  he  orders 
is  a  justification  to  his  followers.  He  must  answer  in  his 
political  capacity  for  all  his  violations  of  the  settled  usages  of 
civilized  warfare.  His  subjects  stand  behind  him  for  pro- 
tection.3 

The  government  of  military  occupation  has  complete  con- 
trol of  lands  and  immovable  private  property  of  the  enemy  in 
the  occupied  district.  The  fruits,  rents,  and  profits  issuing 
therefrom  are  therefore  under  the  control  of  that  government 
whose  officials  may  lawfully  claim  and  receive  them.4  Im- 
movable private  property  is  not  confiscable,  and  although  the 
conqueror  might  alienate  it  the  purchaser  would  not  have  a 
good  title  unless  the  temporary  became  permanent  conquest.5 
It  has  generally  been  held,  however,  that  contracts  or  agree- 
ments which  the  military  authorities  may  make  with  indivi- 
duals regarding  such  property  will  be  valid  only  so  long  as 

1.  Fleming  v.  Page,  9  How.,  615.  2.   100  U.  S.,  167. 

3.  92  U.  S.,  p.  195.         4.  Halleck,  ch.  32,  sec.  4.         5.  Manning,  pp.  i82-'3. 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  141 

these  authorities  retain  control  of  it,  and  will  cease  on  its  res- 
toration to  or  recovery  by  its  former  owner.1  Without  doubt 
this  is  the  general  rule.  In  the  nature  of  things  contracts  en- 
tered into  by  the  invader  in  territory  he  has  overrun  lose  their 
efficacy  when  his  dominion  ceases. 

Still,  as  was  illustrated  in  the  case  of  New  Orleans  v.  Steam- 
ship Company,  a  circumstances  may  render  such  contracts  valid 
even  beyond  that  time.  The  Federal  military  authorities  held 
New  Orleans  from  May  1,  1862,  until  March  18,  1866,  when  its 
control  was  handed  over  to  the  civil  city  authorities.  Between 
these  dates  it  was  subject  to  military  government  as  a  con- 
quered foreign  province.3  In  the  exercise  of  his  authority 
under  the  laws  of  war  the  commanding  general  appointed  a 
mayor  of  the  city  and  certain  boards  for  carrying  on  municipal 
affairs.  On  July  8,  1865,  this  mayor,  acting  conjointly  with 
the  boards  mentioned,  made  a  lease  of  certain  city  property  for 
the  term  of  ten  years.  Though  not  so  directly  expressed,  yet 
in  fact  this  was  and  was  well  understood  to  be  the  act  of  the 
government  of  military  occupation.  When,  therefore,  the  civil 
authorities  resumed  control  this  lease  had  yet  nine  years  and 
three  months  to  run.  The  city  now  essayed  to  oust  the  lessees. 
It  was  claimed  that  the  government  of  military  occupation,  and 
therefore  the  military  mayor  and  boards,  its  appointees,  had  no 
authority  to  make  such  a  lease  ;  that  whatever  rights  or  powers 
they  possessed  ceased  with  the  termination  of  military  rule  ; 
and  that  they  could  no  more  create  an  interest  to  last  beyond 
that  time  than  could  a  tenant  for  years  create  one  to  last  beyond 
his  term.  But  the  Supreme  Court  held  that  the  lease  was  good. 
It  was  not  to  be  disputed,  the  court  observed,  that  the  gov- 
ernment of  military  occupation  might  appoint  all  the  necessary 
officers  under  it  and  clothe  them  with  necessary  authority  to 
carry  on  its  affairs.  It  might  prescribe  the  revenue  to  be  raised 
and  direct  their  disposition.  It  could  do  anything  to  strengthen 
itself  and  weaken  the  enemy.  The  laws  and  usages  of  war 
form  the  only  limit  to  the  powers  that  can  be  exercised  in  such 
cases.  Amidst  such  surroundings  those  laws  and  usages  took 
the  place  of  the  laws  and  Constitution  of  the  United  States  as 
applied  in  times  of  peace. 

1.  Vattel,  bk.  3,  ch.  13,  sees.  197,  198.  2.   20  Wallace,  387. 

3.  Ibid.,  393  ;  2  Black,  636  ;  3  Wallace,  417  ;  6  Ibid.,  I. 


142  MILITARY    GOVERNMENT   AND    MARTIAL   UW. 

Granting,  however,  that  the  lease  of  this  property  during  the 
continuance  of  the  military  possession  of  the  United  States 
was  within  the  scope  of  military  authority,  it  was  claimed  by 
the  restored  city  authorities  that  when  military  control  termi- 
nated the  lease  fell  with  it.  The  Supreme  Court  decided 
otherwise.  "  We  can  not,"  said  that  court,  "  take  this  view  of 
the  subject.  The  question  arises  whether  the  instrument  was  a 
fair  and  reasonable  exercise  of  the  authority  under  which  it 
was  made.  A  large  amount  of  money  was  to  be  expended  and 
was  expended  by  the  lessees.  The  lease  was  liable  to  be 
annulled  if  the  expenditures  were  not  made  and  the  work  it 
called  for  done  within  the  time  specified.  The  war  might  last 
many  years,  or  it  might  at  any  time  cease,  and  the  State  and 
city  be  restored  to  their  normal  condition.  The  improvements 
to  be  made  were  important  to  the  welfare  and  prosperity  of  the 
city.  The  company  had  a  right  to  use  them  only  for  a  limited 
time.  The  company  was  to  keep  them  in  repair  during  the  life 
of  the  lease,  and  at  its  termination  they  were  all  to  become  the 
property  of  the  city.  In  the  meantime  the  rental  of  eight 
thousand  dollars  a  year  was  to  be  paid.  When  the  military 
authorities  retired  the  rent  notes  were  all  handed  over  to  the 
city.  The  city  took  the  place  of  the  United  States  and  suc- 
ceeded to  all  their  rights  under  the  contract.1  The  lessees  be- 
came bound  to  the  city  in  all  respects  as  it  had  before  been 
bound  to  the  covenantees  in  the  lease.  The  city  thereafter 
collected  one  of  the  notes  subsequently  due,  and  it  holds  the 
fund  without  an  offer  to  return  it  while  conducting  this  liti- 
gation. It  is  also  to  be  borne  in  mind  that  there  has  been  no 
offer  of  adjustment  touching  the  lasting  and  valuable  improve- 
ments made  by  the  company  (lessees),  nor  is  there  any  com- 
plaint that  the  company  has  failed  in  any  particular  to  fulfill 
their  contract.  We  think  the  lease  was  a  fair  and  reasonable 
exercise  of  the  power  vested  in  the  military  mayor  and  the 
two  boards. ' ' 2 

Unquestionably  this  opinion,  whatever  its  merits  in  the 
abstract,  is  not  strictly  in  accord  with  the  generally  accepted 
authorities  regarding  the  time-limit  of  contracts  entered  into 

1.  U.  S.  v.  McRea,  8  Law  Reports,  Equity  Cases,  75. 

2.  20  Wallace,  394-'5. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  143 

by  military  officials  under  military  government.  The  court 
did  not  question  the  soundness  of  the  principle  contended  for 
by  these  authorities,  that  such  contracts  cease  with  the  power 
which  creates  them.  But  the  peculiar  features  of  the  case  were 
held  to  be  sufficiently  striking,  the  claims  of  the  lessees  to  rest 
so  clearly  and  firmly  on  justice  and  equity,  as  to  remove  their 
cause  from  the  operation  of  the  general  rule. 

The  laws  of  nations,  it  has  been  said,  are  based  on  common 
sense,  and  the  laws  of  war  are  a  branch  thereof. l  This  opinion 
of  the  Supreme  Court  rests  on  reason.  It  should,  therefore,  be 
considered  as  establishing  the  rule  applicable  to  this  and  simi- 
lar cases  whatever  the  nation  involved  and  wherever  the  mili- 
tary force  be  employed.  The  laws  of  nations  are  not  inflexible 
like  the  rescripts  of  the  Roman  emperors.  While  possessing 
the  stability  of  a  recognized  code,  they  change  with  circum- 
stances, improve  with  time,  and  adapt  themselves  to  the  in- 
tellectual and  material  progress  of  peoples.  When,  therefore, 
as  in  this  instance,  the  teachings  of  the  past  are  at  variance 
with  the  better  thought  of  the  more  enlightened  present,  it  is 
not  only  allowable  but  it  is  eminently  proper  that  the  former 
should  be  disregarded  and  the  law  be  established  upon  princi- 
ples in  keeping  with  the  more  advanced  state  of  society. 

It  happened  in  this  instance  that  the  court  pronouncing  the 
opinion  was  the  supreme  judicial  tribunal  of  a  State  which  had 
recently  triumphed  over  rebellion.  It  was  in  an  insurrectionary 
district  involved  in  this  rebellion  that  the  military  government 
was  established,  the  proper  limits  of  whose  authority  was  in- 
volved in  the  questions  here  decided.  That  rebellion  failed 
and  the  district  thus  subject  to  a  military  government  was 
again  and  permanently  brought  under  the  undisputed  dominion 
of  the  parent  State.  The  vanquished  had  no  alternative  but 
to  accept  the  edict  of  the  conqueror  thus  judicially  expressed. 
But  the  opinion  rests  upon  better  and  firmer  ground  than  this. 
It  is  founded  upon  principles  of  common  honesty  and  public 
utility.  It  shows  the  necessity,  even  amidst  the  trying  scenes 
of  war,  of  good  faith  between  those  who  confer  and  those  who 
accept  benefits  flowing  from  public-spirited  enterprises. 

1.  2  Black,  667. 


T44  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

Cobbett  states  that  although  acts  done  in  a  country  by  an  in- 
vader can  not  be  nullified  in  so  far  as  they  have  produced  ef- 
fects during  the  occupation,  they  become  inoperative  so  soon  as 
the  legitimate  government  is  restored.  He  instances  the  case 
in  the  Franco-German  war  of  a  wood  contract  entered  into  by 
the  Germans  with  certain  parties  to  cut  wood  in  French  forests. 
Peace  found  the  contract  incomplete.  The  question  arose, 
should  it  be  completed  under  the  original  covenant  ?  The  con- 
tractors desired  to  complete  it,  and  they  urged  that  the  Ger- 
man government,  having  acted  within  their  right  in  making 
the  contract,  the  restored  French  government  ought  to  permit 
it  to  go  on  to  completion.  The  latter  held  that  this  restoration 
annulled  the  contract.  They  made  in  the  supplemental  con- 
vention of  nth  December,  1871,  a  declaration  to  that  effect, 
which  was  treated  by  the  Germans  as  conforming  to  correct 
principles.1 

No  restriction  exists  to  prevent  the  commanding  general  in 
enemy  territory  from  subsisting  his  army  on  supplies  gathered 
there,  or  appropriating  property  which  in  any  wise  is  useful  for 
military  purposes.  The  experience  of  every  army  which  pene- 
trated enemy  country  during  the  rebellion  bears  testimony  to 
this  fact.  While  property  might  not  be  confiscated,  that  is, 
seized  to  be  sold  and  the  proceeds  turned  into  the  national 
Treasury,  everything  that  was  necessary  for  the  sustenance, 
transportation,  clothing,  and  bivouacing  of  the  troops  was  ap- 
propriated without  question.  What  compensation  shall  be 
given  those  whose  property  is  taken  it  is  for  the  dominant  power 
to  determine. 

Administrative  acts  taken  by  the  military  government,  having 
no  political  signification,  generally  remain  in  force  after  it  has 
ceased.  This  is  true  of  administrative  acts  in  this  narrower 
meaning — financial,  economical,  educational — as  well  as  of  ju- 
dicial acts,  judgments  in  civil  and  criminal  proceedings.  As 
the  law  of  war  authorizes  the  military  government  to  regulate 
and  conduct  the  administration,  and  as  it  is  necessary  to  the 
general  public  interests  that  matters  of  detail  should  be  trans- 
acted, and  as  finally  there  is  no  political  consideration  in  the 
way,  the  recognition  of  that  which  has  been  executed  is  a  con- 

1.  P.  141;  see  also  Hall,  p.  449,  et  seq. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  145 

sequence  of  the  continuation  of  law  and  of  the  uninterrupted 
exercise  of  administrative  functions.  The  annulling  of  all 
judgments  rendered  in  the  interval  by  courts,  the  personnel  of 
which  has  perhaps  been  changed,  or  repudiation  of  decisions  of 
the  newly-filled  offices  of  finance  or  police,  would  be  a  mis- 
conception of  the  true  principle  and  would  create  numberless 
complications.1 

In  times  past  it  was  a  common  practice  for  European  nations 
to  apportion  out  certain  of  the  spoils  of  war  on  land,  as  it  is 
everywhere  done  on  sea,  to  the  soldiers  as  an  incentive,  appar- 
ently, to  bravery.2  The  wars  springing  out  of  and  following 
the  French  revolution  afford  many  illustrations.  But  since 
then  public  sentiment  has  set  in  strongly  against  the  practice  ; 
and  it  is  believed  that  recent  wars,  particularly  among  the 
christian  nations,  present  few  examples  of  the  soldiery  being 
stimulated  to  exertions  by  so  objectionable  methods. 

In  the  United  States  service  the  disposition  of  property  taken 
from  the  enemy  is  regulated  by  statute.  The  Articles  of  War 
direct  that  all  public  stores  so  obtained  shall  be  secured  for  the 
public  service,  and  for  neglect  of  this  the  commanding  officer  is 
answerable  ; 3  while  death  or  such  other  punishment  as  a  court- 
martial  shall  direct  is  denounced  against  any  officer  who  quits 
his  post  or  colors  to  plunder  or  pillage.4  This  has  ever  been 
the  law  as  applicable  to  the  United  States  Army,  and  being 
embodied  in  the  British  Articles  of  War,  these  rules  were  oblig- 
atory upon  the  colonial  forces  before  the  American  Revolution. 
Similar  rules  were  enforced  with  rigid  exactness  during  Rome's 
greatest  prosperity.  The  soldier  was  obliged  to  bring  into  the 
public  stock  all  the  booty  he  had  taken.  This  the  general 
caused  to  be  sold,  and  after  distributing  a  part  among  the  sol- 
diers according  to  rank,  he  consigned  the  residue  to  the  public 
treasury.5  It  is  true  that  the  practice  of  dividing  up  booty 
was  here  legalized,  but  the  more  important  principle  was  in- 
flexibly enforced  that  all  property  taken  from  the  enemy  be- 
longed primarily  to  the  State.  If  any  soldier  partook  of  the 
spoils  of  war  it  was  through  the  favor  of  the  State.     In  this 

1.  Bluutschli,  Laws  of  War,  I,  sec.  222. 

2.  Vattel,  bk.  3,  ch.  9,  sec.  164.  3.   9  Art.  of  War. 

4.  42  Art.  of  War.  5.   Vattel, bk.  3,  ch.  9,  sec.  164. 


146  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

way  that  ruthless  robbery  which  has  disgraced  some  modern 
wars,  notably  in  the  Spanish  Peninsula  at  the  beginning  of 
this  century,  when  beauty  and  booty  were  deemed  to  belong  of 
right  to  him  who  could  first  lay  violent  hands  upon  them  was 
avoided  with  all  its  barbarism  and  demoralizing  influences. 

The  practices  of  modern  times  have  tended  to  soften  the  severity 
of  warlike  operations  on  land.1  This  is  illustrated  in  the  orders 
of  the  President  of  the  United  States  of  July  22,  1862,  directing 
all  military  commanders  within  certain  of  the  States  then  in 
insurrection,  in  an  orderly  manner  to  seize  and  use  any  prop- 
erty, real  or  personal,  which  might  be  necessary  or  convenient 
for  their  several  commands  as  supplies  or  for  other  military 
purposes.  While  such  property  might  be  destroyed  in  the  at- 
tainment of  proper  military  objects,  this  was  never  to  be  done 
in  malice.'2 

Even  this,  however,  was  carrying  the  principle  of  appropri- 
ating enemy's  private  property  beyond  what  is  considered  by 
some  writers  as  properly  permissible.5  "The  general  usage 
now  is, ' '  says  Kent,  ' '  not  to  touch  private  property  upon  land 
without  making  compensation,  unless  in  special  cases  dictated 
by  the  necessary  operations  of  war,  or  when  captured  in  places 
carried  by  storm  and  which  repelled  all  the  overtures  for  a  ca- 
pitulation. ' '  But  this  question  is  one  of  expediency  rather  than 
of  law.4  The  appropriating  power  may  not  have  the  funds  to  pay 
for  supplies.  It  may  have  come  to  that  point  in  its  financial 
affairs  when  the  rule  that  war  must  be  made  to  sustain  war  is 
all  that  is  left  to  it.  The  French  Empire  was  reduced  to  these 
straits  during  the  latter  part  of  the  wars  of  Napoleon.  So  in 
great  degree  was  the  government  of  the  United  States,  judg- 
ing from  the  above  quoted  order  in  the  early  stages  of  the  civil 
war.  It  is  a  matter  of  common  history  that  on  every  theatre 
of  operations  the  rule  established  by  that  order  governed  the 
various  commanding  generals  of  the  Union  forces  in  supplying 
their  armies,  in  part  at  least,  from  the  resources  of  the  enemy 
country.  In  the  great  cavalry  raids,  which  have  become  a 
prominent  feature  of  recent  wars,  where  large  mounted  forces 

1.  Wheaton,  sec.  355  ;  Kent,  I,  ^2-' 2  ;  Woolsey,  section  136. 

2.  G.  O.  109,  A.  G   O.,  1862.  3.  Kent,  I,  91. 
4.  Ibid.,  92  (b) ;  Bluntschli,  Laws  of  War,  I,  sees.  7,  143,  144. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  147 

traversing  extensive  parts  of  enemy  territory  essay  to  break 
up  his  communications,  destroy  his  sources  of  supply,  and  so 
to  paralyze  his  manufacturing  industries,  it  is  essential  that  sus- 
tenance shall,  so  far  as  practicable,  be  gathered  from  the  district 
comprising  the  field  of  operations.  In  such  cases  the  requisite 
celerity  of  movement  renders  this  course  absolutely  necessary. 
In  the  slower  movements  of  large  armies  the  same  necessity  for 
subsisting  off  the  enemy's  country  may  not  exist,  yet  the  plan 
may  be  resorted  to  as  a  matter  of  public  policy. 

There  is  a  distinction  between  the  rights  of  property  captured 
on  sea  and  on  land.  The  nice  questions  with  regard  to  the 
right  to  appropriate  the  latter  which  have  troubled  governments 
and  their  generals  have  not  arisen  concerning  sea  captures. 
The  object  of  maritime  warfare  is  the  destruction  of  the 
enemy's  commerce  and  navigation.  Capture  and  destruction 
of  private  property  at  sea  has  ever  been  deemed  essential  to 
that  end,  and  it  is  allowed  to  the  fullest  extent  by  the' law  and 
practice  of  nations.  A  determined  effort  has  been  made  by 
many  eminent  authorities  to  modify  the  rule  as  to  property  on 
land,  and  to  some  extent  successfully.  The  manner  in  which 
the  results  of  such  efforts  manifest  themselves  is  in  a  gradual 
moulding  of  public  and  official  opinion  in  favor  of  more  liberal 
treatment  of  the  enemy.  The  view  is  gaining  ground  that 
wanton  destruction  or  useless  appropriation  of  private  property 
on  land  should  not  be  permitted.  While  there  is  nothing  to 
absolutely  prevent  it,  the  practice  is  universally  condemned 
among  civilized  nations,  and  gradually  is  becoming  obsolete. 
Nothing  definite  or  inflexible  is  determined  by  this  ;  the  rule  of 
appropriation  is  left  to  vary  with  circumstances,  and  yet  the 
position  of  non-combatants  and  others  in  enemy  country  has 
been  greatly  ameliorated  through  these  instrumentalities. 

The  laws  of  war  recognize  certain  modes  of  coercion  as  justi- 
fiable. They  may  be  exercised  upon  material  objects  or  upon 
persons.  The  former  may  be  a  preferable  mode.  The  taking  of 
private  property  is  an  illustration  of  this.  When  taken  it  is 
because  it  is  of  such  a  character  or  so  situated  as  to  make  its 
capture  a  proper  means  of  coercing  the  opposing  belligerent. 
If  he  has  an  interest  in  the  property  which  is  available  to  him 
for  the  purposes  of  war,  it  is  prima  facie  a  subject  of  capture. 
He  has  such  an  interest  in  all  convertible  and  mercantile  prop- 


148  MILITARY    GOVERNMENT   AND    MARTIAE   LAW. 

erty  either  within  his  control  or  belonging  to  persons  who  are 
living  under  his  control,  and  this,  whether  it  be  on  land  or  sea  ; 
for  it  is  a  subject  either  of  taxation,  contribution,  appropriation, 
or  confiscation.  The  policy  of  modern  times  as  just  mentioned 
has  been  to  establish  the  rule  that  on  land  property  will  not  be 
taken  if  it  be  not  liable  to  direct  use  in  war.1  Some  of  the 
reasons  for  this  are  the  infinite  varieties  of  such  property — from 
things  almost  sacred  to  things  purely  merchantable  ;  the  diffi- 
culty of  discriminating  among  these  varieties  ;  the  need  of 
much  of  it  to  support  the  lives  of  the  inhabitants  ;  the  un- 
limited range  of  places  and  objects  that  would  be  open  to  the 
military  ;  and  the  moral  dangers  attending  searches  and  cap- 
tures in  households  and  among  non-combatants.'2 

The  rule  extends  to  cases  of  absolute  and  unqualified  con- 
quest. Even  when  the  conquest  of  a  country  is  confirmed  by 
the  unconditional  relinquishment  of  the  sovereignty  of  the 
former  owner,  there  can  be  no  general  or  partial  transmutation 
of  private  property  in  virtue  of  any  rights  of  conquest.  Private 
rights  and  private  property,  both  movable  and  immovable,  are 
in  general  unaffected  by  the  operations  of  war. 

Such  is  the  tenor  of  the  instructions  for  the  United  States 
Armies  in  the  field.  Here  it  is  announced  that  the  United 
States  acknowledges  and  protects  in  hostile  countries  occupied 
by  them  religion  and  morality,  strictly  private  property,  the 
persons  of  the  inhabitants,  especially  those  of  women,  and  the 
sacredness  of  domestic  relations.  Offenders  against  these  rules 
are  to  be  rigorously  punished.  But  the  rule  does  not  interfere 
with  the  right  of  the  invader  to  tax  the  people  or  their  property, 
to  levy  forced  loans,  to  billet  soldiers,  or  to  appropriate  property, 
especially  houses,  lands,  boats,  ships,  and  churches  for  tempor- 
ary and  military  uses.  Private  property,  unless  forfeited  by 
crimes  or  by  offences  of  the  owner,  is  to  be  seized  only  by  way  of 
military  necessit)T  for  the  support  or  other  benefit  of  the  army. 
If  the  owner  has  not  fled  the  commander  will  give  receipts  for 
it  with  a  view  to  possible  indemnity. 

But  even  to  the  most  generous  construction  of  the  rule  that 
private  enemy  property  is  not  to  be  taken  without  compensation 

1.  Bluntschli,  I,  sec,  144;  Woolsey  5th  ed.,  section  126 

2.  Wheaton,  pt.  4,  sec.  355,   Dana's  note,  171. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 49 

there  are  certain  well-established  exceptions.  There  may  be 
others,  but  certainly  the  following  are  generally  recognized  : 
First,  seizures  by  way  of  penalty  for  military  offences  ;  second, 
forced  contributions  for  the  support  of  the  invading  armies,  or 
as  an  indemnity  for  the  expenses  of  maintaining  order  and  af- 
fording protection  to  the  conquered  inhabitants  ;  third,  property 
taken  on  the  field  of  battle  or  in  storming  a  fortress  or  town.1 
To  these  may  be  added  a  fourth,  namely,  if  the  private  prop- 
erty, like  cotton  during  the  American  civil  war,  forms  one  of 
the  main  reliances  of  the  enemy  for  procuring  warlike  re- 
sources.2 

"  In  the  first  place,"  observes  Halleck,  "  we  may  seize  upon 
private  property  by  way  of  penalty  for  the  illegal  acts  of  in- 
dividuals or  of  the  community  to  which  they  belong. ' '  Thus 
the  property  of  one  who  offends,  against  the  laws  of  war  is 
seized  without  hesitancy.  And  as  before  stated,  if  the  illegal 
act  of  an  individual  enemy  can  not  with  certainty  be  brought 
home  to  him  and  punishment  meted  out  to  the  guilty  party,  the 
community  in  which  he  lives  and  which  affords  him  an  asylum 
must  pay  the  penalty.  This  was  a  very  common  practice  dur- 
ing the  American  civil  war  and  the  Franco-German  war  of 
1870.  It  is  nothing  more  than  an  application  under  the  laws  of 
war  of  the  common-law  principle  which  held  the  hundred  re- 
sponsible for  robberies  or  felonies  unless  the  criminal  was  ap- 
prehended and  lodged  in  the  hands  of  the  civil  officers.3  So 
if  the  offence  attach  itself  to  any  particular  community  or  town , 
all  the  citizens  thereof  are  liable  to  punishment ;  their  property 
may  be  seized,  or,  by  way  of  penalty,  a  retaliatory  contribution 
may  be  levied  upon  them.  If  the  guilty  can  be  secured  it  is 
more  just  to  punish  them  alone.  But  the  rule  is  inflexible  that 
the  community  may  be  held  responsible  for  the  acts  of  its  in- 
dividual members.  This  makes  it  the  interest  of  all  to  dis- 
cover the  offenders  and  deliver  them  up  to  justice. 

"  The  right  of  taking  hostages,"  says  Bluntschli  (I,  section 
92),  "  was  applied  in  a  new  but  questionable  manner  during  the 

1.  Halleck,  ch.  19,  sec.  13;  Manning,  p.  188. 

2.  Mrs.  Alexander's  cotton,  2  Wallace,  420;    Lamar  v.  Browne,  92   U.  S., 

194  ;  Boyd's  Wheaton,  p.  411. 

3.  Blackstone's  Comm.,  3,  p.  161;  4,  pp.  246,  293. 


150  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

late  war  between  Germany  and  France  when  influential  inhab- 
itants of  French  towns  and  villages  were  forcibly  carried  off  as 
security  against  the  interruption  of  railway  communication. 
It  is  questionable,  because  it  places  peaceful  inhabitants  in  the 
most  serious  danger,  even  of  their  lives,  without  any  blame  on 
their  part,  and  without  affording  adequate  security,  inasmuch 
as  the  fanatics  who  tears  up  the  rails  or  otherwise  endanger 
the  trains  have  little  regard  for  the  lives  of  the  notabilities  for 
whom  they  perhaps  only  entertain  hate.  It  is  only  justifiable 
in  the  case  of  necessity  on  the  ground  of  reprisal."  The 
ground  upon  which  the  seizures  are  made  is  that  security  is 
thus  obtained  that  such  practices  as  interrupting  or  interfering 
with  railroad  traffic  will  be  stopped.  The  interest  which 
prominent  citizens  have  in  the  community  will,  if  they  be 
taken  into  custody,  secure  either  the  exertions  of  the  inhab- 
itants to  ferret  out  evil-doers,  or  increased  vigilance  to  prevent 
a  repetition  of  bridge-burning  and  other  similar  interferences 
with  the  railroads  or  other  means  of  communication.  It  is 
one  of  the  common  practices  of  war.  The  instances  are  num- 
erous during  the  civil  war  where  commanders  notified  the 
people  amongst  whom  they  were  that  they  or  particular  of- 
ficers would  be  held  responsible  for  war  crimes  of  this  nature 

There  is  another  reason  for  this  severe  rule.  Cowardice  and 
crime  often  seek  to  screen  themselves  in  the  obscurity  of  the 
crowd.  Collections  of  individuals  and  even  communities  can 
often  in  an  indistinguishable  mass  be  brought  to  do  that  which 
the  individual  members,  standing  out  on  their  own  responsi- 
bility, would  shrink  from  doing.  The  trying  incidents  of  war 
offer  many  opportunities  for  the  display  of  this  trait  of  human 
weakness.  The  surest  way  to  curb  this  is  to  have  it  well 
understood  that  the  cloak  of  the  many  affords  no  immunity  for 
the  transgressions  of  the  few. 

In  the  fall  of  1861,  as  large  numbers  of  Union  refugees  were 
driven  from  districts  of  the  State  held  by  rebels  into  St.  L,ouis, 
Missouri,  the  commanding  general,  a  distinguished  soldier, 
lawyer,  and  writer  on  international  law,  directed  that  these 
destitute  people  be  maintained  at  the  expense  of  those  in  that 
city  who  were  known  to  be  hostile  to  the  Union  cause.  '   Enforced 

1.  Halleck,  ch.  19,  section  14;  Mitchell  V.  Clark,  no  U.  S.,  p.  633. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  151 

contributions  from  the  enemy  are  equally  authorized,  whether 
required  during  the  progress  of  the  war  for  the  sustenance  and 
transportation  of  the  conqueror's  army,  or  after  the  conclusion 
thereof  as  one  of  the  terms  of  peace.1 

The  ancient  rule  of  war  authorized  the  enslavement  of  all 
enemies  and  the  taking  all  their  property.  It  is  readily  seen 
what  a  great  amelioration  of  this  rule  sparing  the  persons  of 
non-combatants  is,  and  levying  not  upon  all  enemy  property, 
public  and  private,  but  only  demanding  such  money  or  supplies 
as  the  army  of  occupation  may  require.  That  army  must  be 
subsisted  somehow,  either  by  regular  supplies  paid  for  by  its 
own  government,  the  pillage  of  the  occupied  territory,  or  by 
contributions  levied  on  the  people. 

The  first  course  may  not  always  be  practicable,  either  because 
the  troops  are  too  far  from  their  sources  of  supply,  or  their  gov- 
ernment can  not  afford  the  expense,  or  it  be  not  deemed  good 
policy. 

Pillage  is  generally  inexcusable  in  these  days,  and  the  State 
which  would  without  urgent  necessity  authorize  or  sanction  it 
would  receive  as  it  would  deserve  the  condemnation  of  the  civ- 
ilized world.  The  inevitable  consequences  of  pillage  are  gen- 
eral destruction  of  property,  violation  of  every  right  of  person 
no  matter  how  sacred,  and  the  demoralization  of  the  troops  en- 
gaged in  it.  The  suffering  people,  incensed  at  the  useless  hard- 
ships imposed  upon  them,  are  converted  into  implacable  enemies. 
Straggling  parties  of  the  troops  are  cut  off  and  massacred  often 
with  circumstances  of  great  barbarity,  the  result  of  that  fero- 
cious spirit  which  war  so  conducted  invariably  arouses.  More- 
over, the  plan  soon  becomes  impracticable.  The  peasantry, 
maddened  by  personal  indignities,  prefer  to  destroy  property 
rather  than  permit  it  to  fall  into  the  hands  of  a  ruthless  foe. 
The  army  scattered  for  subsistence  can  not  always  concentrate 
for  action.  And  what  avails  it  that  the  army  has  subsisted 
upon  the  occupied  territory  if  the  campaign  be  lost  ? 

Pillage  is  not  only  impolitic  and  unjust,  but  is  attended  with 
so  little  that  is  good  and  so  much  that  is  bad  that  except  as  a 
last  resort  it  has  fallen  into  disuse  among  enlightened  nations. 
It  may,  indeed,  be  justified.     There  may  be  absolutely  no  other 

1.  Woolsey,  section  136  ;  Twiss,  L,aw  of  Nations,  p.  124. 


152  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

way  to  subsist  the  army.  In  that  case  the  general  simply  falls 
back  on  that  ultimate  rule  of  force  which  places  all  enemy 
property  at  his  disposal.  In  case  also  of  cavalry  raids  it  may 
become  necessary  for  the  troops  to  procure  their  supplies 
wherever  they  may  be  found.  But  even  here  it  will  prove 
advantageous  to  proceed  as  regularly  and  justly  as  circum- 
stances will  permit.  This  was  recommended  by  the  Brussels 
project  of  an  international  declaration  concerning  the  laws  and 
customs  of  war.1  And  although  these  recommendations  are 
without  binding  force  they  well  express  the  prevailing  drift 
of  modern  ideas  on  this  subject. 

The  remaining  method  of  supplying  an  army  in  the  enemy's 
country  is  by  contributions  levied  upon  the  inhabitants  either 
directly  or  through  the  constituted  authorities.  In  this  case  it 
may  well  happen  that,  instead  of  levying  the  contributions,  a 
sum  of  money  may  be  demanded  in  lieu  thereof;  for,  if  the 
money  be  forthcoming,  it  is  generally  an  easy  matter  to  secure 
all  needful  supplies,  so  far  as  they  exist  in  the  country,  from 
the  inhabitants.  The  enemy's  subjects,  by  paying  the  sums  or 
contributing  the  supplies,  have  a  right  to  expect  that  their 
property  will  be  secure  from  pillage  and  the  country  preserved 
from  devastation.  The  American  general-in-chief,  after  occupy- 
ing the  capital  of  Mexico,  established  a  system  of  revenue 
whereby  he  gathered  into  his  hands  most  of  the  internal  dues 
and  taxes  which,  under  ordinary  circumstances,  would  be 
owing  to  the  Mexican  Federal  Government,  to  be  used  in  pro- 
curing supplies  for  the  army  of  occupation.  In  doing  this  he 
gave  his  adhesion  to  an  enlightened  policy.  Ordinary  revenues 
were  not  molested.  The  civil  government  of  the  various  Mexi- 
can states,  as  well  as  city  and  municipal  governments,  were 
encouraged  to  remain  in  the  discharge  of  their  duties.  It  was 
recognized  that  while  performing  their  functions  they  must 
have  pecuniary  support.  Hence  every  precaution  was  taken 
that  moderate  and  reasonable  sums  should  be  set  aside  for  this 
purpose.  In  the  capital  city  itself  a  considerable  sum  was 
collected  in  lieu  of  pillage.2 

The  magnanimity  of  the  victorious  commander  in  apportion- 
ing his  demands   on  a   conquered   people   according   to   their 

1.  Boyd's  Wheatou,  pp.  476,  4S1  ;  Appendix,  III. 

2.  Scott's  Autobiography,  pp.  558,  560,  582. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 53 

ability  to  meet  them,  and  the  even-handed  justice  with  which 
he  enforced  his  contributions,  merits  every  applause.  This 
notwithstanding  the  fact  that  a  sum  levied  in  lieu  of  pillage 
may  sound  like  a  harsh  proceeding.  It  was  merciful.  It  re- 
duced suffering  as  much  as  possible  consistent  with  efficient 
military  control ;  and,  by  the  contentment  of  the  people  thereby 
secured,  lessened  the  duties  imposed  upon  his  army  and  in 
many  ways  enhanced  the  interests  of  the  United  States.  And 
it  conformed  to  the  teachings  of  the  sages  of  the  law.  "A 
general,"  says  Vattel,  "who  wishes  to  enjoy  an  unsullied 
reputation,  must  be  moderate  in  his  demand  of  contributions 
and  proportion  them  to  the  abilities  of  those  upon  whom  they 
are  imposed.  An  excess  in  this  point  does  not  escape  the  re- 
proach of  cruelty  and  inhumanity  ;  although  there  is  not  so 
great  an  appearance  of  ferocity  in  it  as  in  ravage  and  destruc- 
tion, it  displays  a  greater  degree  of  avarice  or  greediness."  1 

Those  upon  whom  contributions  are  levied  during  the  pro- 
gress of  war  are  not  the  armies  of  the  enemy  ;  if  so,  there 
would  be  an  excuse  for  severity.  They  are,  as  a  rule,  non-com- 
batants, peaceable  citizens  and  corporations,  all  of  whom  the 
demands  of  the  times  have  thrown  into  financial  straits.  To 
pay  the  contributions  requires  on  their  parts  great  pecuniary 
sacrifice  at  a  time  when  they  are  least  able  to  bear  it.  To  de- 
mand contributions  excessive  in  amount,  or  to  collect  them 
with  unnecessary  harshness,  is  useless  oppression.  They  are 
calculated  to  give  rise  to  all  those  evils  attending  pillage  before 
pointed  out,  and  in  fact  they  constitute  pillage  under  a  milder 
name.  Policy  and  the  dictates  of  humanity  require  that  in 
levying  contributions  as  generous  forbearance  should  be  shown 
as  is  compatible  with  the  unquestioned  rights  of  the  conqueror. 
Anything  beyond  this  is  unnecessary  and  can  never  be  either 
wise  or  justifiable. 

A  government  by  conscription  may  bring  all  private  persons 
within  the  list  of  combatants,  and  by  a  course  of  conduct  which 
makes  all  private  virtually  public  property  may  render  it 
hostile.  When  this  happens  the  property  may  be  appropriated 
by  the  enemy  upon  any  terms  he  may  dictate.  The  reason 
why  private  property  on  land  generally  is  exempt  from  such 

I,  Bk.  3,  ch.  9,  sec.  165. 


154  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

seizures  is  because  many  of  the  people  are  non-combatants, 
enemies  only  in  name,  and  policy  and  humanity  alike  counsel 
that  they  be  generously  treated.  But  if  the  community  en 
masse  with  their  property  are  dedicated  to  belligerent  purposes, 
the  reason  of  the  rule  of  exemption  ceases  and  the  rule  ceases 
with  it. 

The  following  remarks  of  Dr.  Bluntschli  may  be  assumed  to 
set  forth  the  German  theory  on  the  interesting  subject  of  con- 
tributions ;  we  say  theory,  because  from  the  accounts  of  Ger- 
man practices  in  France  it  has  not  in  that  army  risen  above 
that.  Nevertheless,  it  is  not  to  be  contemptuously  cast  to 
one  side  because  it  is  a  theory  ;  much  excellent  authority 
is  in  the  direction  for  which  the  learned  doctor  contended  : 

' '  The  occupying  army  may  demand  of  the  inhabitants  such 
gratuitous  contributions  as  may  appear  necessary  for  the  sub- 
sistence of  the  troops  and  for  their  transportation,  as  well  as 
that  of  the  material  of  war,  provided  such  contributions  are 
recognized  as  a  public  duty  by  the  customs  and  usages  of  war. 

"The  proclamation  of  the  Crown  Prince  of  Prussia,  of  the 
20th  August,  1870,  when  he  occupied  Lorraine,  is  worthy  of 
notice.  '  I  bespeak  for  the  sustenance  of  the  army  only  such 
surplus  of  supplies  as  are  not  used  for  the  subsistence  of  the 
French  population.'  From  other  quarters  bitter  complaints 
were  made  of  the  excessive  requisitions  of  German  commanders, 
and  these  were  often  abated  by  the  commander-in-chief. ' ' 

He  then  points  out  that  the  army  of  occupation  has  a  right 
to  demand  quarters,  clothing,  wagon  and  other  transportation, 
remarking  that  all  such  demands  according  to  the  circumstances 
of  the  case  give  rise  to  legal  claims  for  indemnification. 

As  to  this  the  doctor  proceeds  :  "It  is  difficult  in  practice  to 
regulate  and  still  more  difficult  to  carry  out  this  duty  of  in- 
demnification. The  enemy  who  requires  and  receives  such 
contributions  for  military  purposes  has  the  strongest  induce- 
ment to  remunerate  the  communities  and  individuals  against 
whom  he  does  not  wage  war.  But  he  is  often  without  funds, 
and  yet  can  not  dispense  with  such  contributions.  In  many 
cases  receipts  are  simply  given  and  the  payment  deferred  until 
the  future.  Moreover,  the  military  authority  may  rely  upon 
its  undoubted  right  of  imposing  upon  the  enemy,  together  with 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  1 55 

the  costs  of  the  war,  the  duty  of  indemnifying  such  com- 
munities and  citizens  for  their  contributions.  Payments  are 
often  refused  upon  this  ground  and  the  creditors  referred  to 
their  own  governments." 

But  no  instance  is  recalled  of  such  sufferers  being  indemnified 
by  their  own  government  when  it  is  restored  to  power.  It  is 
invariably  put  down  as  an  inevitable  hardship  for  which  the 
government  is  under  no  obligations  to  make  compensation.  It 
is  damnun  absque  injuria. 

Mr.  Hall  (p.  439)  goes  even  further  than  Dr.  Bluntschli  in 
requiring  indemnification.  Admitting  the  rights  of  the  invader 
to  appropriate  products  of  enemy  occupied  country,  the  trans- 
portation, shelter,  etc.,  found  there  for  the  use  of  his  army,  he 
thinks  this  does  not  involve  the  right  to  appropriate  these 
things  without  payment  therefor.  The  invader,  this  authority 
contends,  has  a  right  to  take  only  upon  paying  either  cash  or 
certificates  which  his  government  will  honor.  But  this  can 
hardly  be  the  true  doctrine.  If  the  conqueror  pays  for  what  he 
gets  it  is  an  act  of  kindness,  based  probably  upon  considerations 
of  expediency  rather  than  upon  any  right  of  the  conquered  to 
demand  payment. 

The  victor's  right  to  private  property  taken  on  the  field  of 
battle  can  not  be  questioned.  The  same  rule  applies  with  al- 
most as  much  universality  in  case  a  fortress  or  town  is  taken  by 
storm.1  "  Property  taken  on  a  field  of  battle,"  says  the  Su- 
preme Court,  "is  not  usually  collected  until  resistance  has 
ceased,  but  it  is  none  the  less  on  that  account  captured  prop- 
erty. The  larger  the  field  the  longer  the  time  necessary  to 
make  the  collection.  By  the  battle  the  enemy  has  been  com- 
pelled to  let  go  his  possession,  and  the  conqueror  may  proceed 
with  the  collection  of  all  hostile  property  thus  brought  within 
his  reach  so  long  as  he  holds  the  field."  2  But  the  right  to  pri- 
vate property  taken  on  the  field  or  after  the  successful  storming 
of  a  place  must  be  carefully  distinguished  from  the  right  to 
unbridled  license.  It  is  necessary  to  distinguish  between  the 
title  to  property  acquired  by  the  laws  of  war  and  the  accidental 
circumstances  attending  the  acquisition.     The  commander  who 

1.  Boyd's  Wheaton,  p.  411  ;      Vattel,  bk.  3,  ch.  9,  sec.  164  ;     Halleck,  ch. 
19,  sec.  19.  2.  92  U.  S.,  193. 


156  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

permits  indiscriminate  pillage  fails  in  his  duty.  The  taking 
possession  of  property  should  always  be  regulated  by  orders 
emanating  from  proper  authority.  It  is  frequently  true,  especi- 
ally after  the  successful  assault  of  the  enemy's  stronghold,  that 
this  is  not  done.  Justification  is  never  attempted  among  civil- 
ized nations,  but  the  excuse  is  often  made  that  the  general  can 
not  restrain  his  troops.  To  this  it  is  sufficient  answer  that  he 
who  can  not  control  an  army  is  not  fit  to  command  it.  The 
plunder,  October,  i860,  of  the  Emperor  of  China's  summer 
palace  by  the  troops  of  France  and  England  affords  an  illustra- 
tion of  the  insensibility  of  the  most  refined  nations  in  this  re- 
gard, although  this  has  been  explained  as  a  justly  retaliatory 
measure  caused  by  the  barbarous  treachery  of  the  Chinese. 

Of  modern  wars  that  in  the  Spanish  Peninsula  furnishes  the 
most  numerous  instances  of  the  sacking  of  cities  and  the  plun- 
der of  defeated  enemies  by  troops  in  whom  the  instincts  of  men 
had  apparently  been  wholly  supplanted  by  the  ferocity  of  mad- 
dened beasts  of  prey.  Nor  were  these  scenes,  disgraceful  alike 
to  rational  beings  and  the  Christianity  of  which  they  boasted, 
confined  to  any  district  or  their  perpetrators  to  any  army. 

Witness  Oporto,  Tarragona,  Ciudad-Rodrigo,  Bodajos  !  The 
pen  of  the  historian  of  that  protracted  struggle  has  cast  a  lus- 
tre over  the  events  which  he  commemorates,  but  humanity  turns 
from  the  contemplation  of  such  scenes  with  horror,  while  the 
profession  of  arms  repudiates  with  indignation  such  practices 
which  tarnish  the  glory  of  the  most  valiant,  self-sacrificing  deeds 
and  discredits  the  claim  that  civilization  has  nobly  mitigated 
the  severities  of  war.1 

The  fourth  exception  to  the  rule  that  private  enemy  property 
is  not  liable  to  seizure  by  a  belligerent  power  operates  to  forfeit 
all  private  property  which  contributes  directly  to  the  strength 
of  the  enemy  by  enabling  him  to  secure  supplies  for  carrying 
on  the  war.  This  was  pre-eminently  the  case  with  cotton  dur- 
ing the  civil  war.  "Being  enemy's  property,"  said  the  Su- 
preme Court,  ' '  cotton  was  liable  to  capture  and  confiscation  by 
the  adverse  party. "  It  is  true  that  this  rule  as  to  property  on 
land  has  received  very  important  qualifications  from  usage  from 
the  reasoning  of  enlightened  publicists  and  from  judicial  de- 

1.  Napier,  Book  6,  ch.  6  ;  Ibid.,  13,  ch.  5  ;  Ibid.,  16,  ch.  3  ;  Ibid.,  16,  ch.  5. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 57 

cisions.  It  may  now  be  regarded  as  substantially  restricted  to 
special  cases  dictated  by  the  necessary  operations  of  war,  and 
as  excluding,  in  general,  the  seizure  of  the  private  property  of 
pacific  persons  for  the  sake  of  gain.  The  commanding  general 
may  determine  in  what  special  cases  its  more  stringent  appli- 
cation is  required  by  military  exigencies,  while  considerations 
of  public  policy  and  positive  provisions  of  law  and  the  general 
spirit  of  legislation  must  indicate  the  cases  in  which  its  appli- 
cation may  be  properly  denied  to  the  property  of  non-com- 
batant enemies.  In  the  case  before  us  the  capture  seems  to 
have  been  justified  by  the  peculiar  character  of  the  property 
[cotton]  and  by  legislation.  It  is  well  known  that  cotton 
constituted  the  chief  reliance  of  the  rebels  for  means  to  pur- 
chase the  munitions  of  war  in  Europe.  "It  is  matter  of  his- 
tory that  rather  than  permit  it  to  come  into  the  possession  of 
the  national  troops  the  rebel  government  has  everywhere  de- 
voted it,  however  owned,  to  destruction.  The  value  of  that 
destroyed  at  New  Orleans,  just  before  its  capture,  has  been 
estimated  at  eighty  millions  of  dollars.  *  *  *  The  rebels 
regard  it  as  one  of  their  main  sinews  of  war,  and  no  principle 
of  equity  or  just  policy  required,  when  the  national  'occupation 
was  itself  precarious,  that  it  should  be  spared  from  capture  and 
allowed  to  remain  in  case  of  the  withdrawal  of  the  Union  troops 
an  element  of  strength  to  the  rebellion.  And  the  capture  was 
justified  by  legislation  as  well  as  by  public  policy."  1 

Cotton  was  a  security  which  the  insurgents  offered  for  the 
payment  of  their  debts.  Upon  it  they  relied  for  their  influence 
abroad.  To  obtain  it  forced  contributions  were  exacted  from 
its  owners.  From  time  to  time  in  the  progress  of  the  war  it  was 
found  upon  the  enemy's  territory  occupied  by  the  military 
forces  of  the  United  States.  While  when  so  found  it  might 
have  been  owned  by  non-combatant  enemies,  and  in  that  sense 
been  private  property,  it  was  in  fact  under  the  circumstances 
at  least  semi-public.  If  left  undisturbed,  and  the  enemy  should 
repossess  themselves  of  the  territory,  it  would  again  be  placed 
where  it  might  strengthen  the  rebellion.  Its  capture  was, 
therefore,  legitimate  ;  not  for  booty  but  to  cripple  the  enemy.2 

1.  2  Wallace,  4i9-'2o. 

2.  22  Wallace,  94  ;  9  Wallace,  67  ;  13  Wallace,  137. 


158  MILITARY    GOVERNMENT   AND    MARTIAL  LAW. 

Nor  does  the  exception  apply  to  cotton  alone.  The  principle 
embraces  any  property  which,  owing  to  its  peculiar  value,  be- 
comes a  great  resource  whence  the  enemy  draws  the  means  of 
maintaining  the  war.  In  the  nature  of  things  it  can  not  be 
confined  to  any  particular  kind  of  property.  The  true  test  is 
not  what  particular  species  it  may  be,  but  its  value  to  the 
enemy.  If  for  any  cause  it  is  to  an  unusual  degree  the  enemy's 
source  of  strength,  it  may  be  appropriated.  It  might  be  said 
that  all  private  property  adds  in  some  measure  to  the  enemy's 
strength,  and  so  might  be  brought  within  the  rule.  But  as 
before  pointed  out,  the  great  mass  of  private  property  the 
owners  of  which  have  not  by  their  conduct  rendered  it  forfeitable, 
is  under  modern  practice  exempted  from  seizure  without  some 
compensation.  To  property  of  this  description  the  rule  under 
discussion  has  no  applicability.  But  it  does  embrace  property 
of  what  nature  soever  it  may  be,  which  owing  to  its  peculiar 
predicament  with  reference  to  the  enemy  becomes  in  a  marked 
manner  the  foundation  upon  which  his  material  strength  is 
built,  his  credit  established,  and  thence  means  supplied  for 
prosecuting  hostilities. 

Not  only  may  enemy  property  be  appropriated,  but  under  some 
circumstances  it  may  be  destroyed  regardless  of  the  suffering 
thus  entailed.  Here  as  in  the  other  case  the  modern  rule  is 
that  it  is  not  lawful  to  impose  unnecessary  hardships.  What 
this  authorizes  is  a  matter  wholly  within  the  breast  of  the  com- 
mander. ' 

Within  the  limitations  of  this  rule  the  right  to  destroy  can 
not  be  controverted.  It  is  as  well  established  as  any  other 
rule  of  war.  If  it  be  lawful  to  take  away  the  property  of  an 
enemy  in  order  to  weaken  or  punish  him,  the  same  motives 
justify  us  in  destroying  what  we  can  not  conveniently  carry 
away.  Thus  we  waste  a  country  and  destroy  the  provisions 
and  forage  that  the  enemy  may  not  find  a  subsistence  there  ; 
we  sink  his  ships  when  we  can  not  take  them  or  bring  them 
off.  All  this  tends  to  promote  the  main  objects  of  the  war,  but 
such  measures  are  only  to  be  pursued  with  moderation,  and  ac- 
cording to  the  exigency  of  the  case.   This  accords  with  universal 

1.  Bluntschli,  I,  par.  153  ;  Twiss,  Law  of  Nations,  p.  125  ;  Manning,  p.  186  ; 
Hall,  pp.  489-492. 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  159 

practice.  If  such  destruction  is  necessary  in  order  to  cripple 
the  operations  of  the  enemy  or  to  insure  our  success,  it  is  jus- 
tifiable. Thus  if  we  can  not  remove  captured  property  we  may 
destroy  it,  but  not  in  mere  wantonness.  We  may  destroy  pro- 
visions and  forage  in  order  to  cut  off  the  enemy's  subsistence, 
but  we  can  not  destroy  vines  and  cut  down  fruit  trees  without 
being  looked  upon  as  savage  barbarians. 

In  some  instances  the  right  of  an  active  belligerent  to  destroy 
enemy's  property  has  been  carried  far  beyond  this.  Extensive 
territories  have  been  ravaged,  towns  and  villages  sacked. 
This  may  be  justified  :  First,  as  an  act  of  retaliation,  when  the 
enemy,  upon  our  own  territory,  has  adopted  a  system  of  spoli- 
ation. This  was  illustrated  in  the  last  war  between  the  United 
States  and  Great  Britain  wherein  the  British  military  and 
naval  forces,  in  revenge  for  alleged  destruction  of  property  by 
the  United  States  Army  in  Upper  Canada,  laid  waste  much  of  the 
country  adjoining  the  bays  of  the  Atlantic  coast  and  burned  the 
capitol  and  other  public  buildings  at  Washington  ;  and  though 
the  conduct  of  the  British  commanders  was  stigmatized  as 
mere  wantonness  because  the  circumstances  upon  which  it  was 
predicated  were  not  such  as  to  warrant  the  severe  measures 
taken,  still  the  principle  of  retaliation  under  proper  conditions 
contended  for  by  them,  and  which,  erroneously  as  was  claimed 
by  the  American  Government,  they  relied  upon  to  justify  those 
measures,  was  never  questioned.  Second,  when  necessary  to 
weaken  the  military  power  of  a  formidable  foe,  as  illustrated 
by  the  burning  of  Atlanta,  Georgia — an  important  strategic 
point  which  could  not  be  held — by  General  Sherman  in  1864. 
And  while  it  is  true  that  a  commander  who  should  without  ne- 
cessity thus  destroy  property  becomes  the  scourge  of  mankind, 
still,  if  that  necessity  exists,  in  order  that  the  operations  of  the 
war  may  be  successfully  conducted,  he  has  an  undoubted  right 
to  take  such  a  step.1  The  rule  of  law  is  that  destruction  is 
justified  only  so  far  as  it  is  indispensable. 

The  destruction  of  property  in  this  manner  can  not  take 
place  under  military  government  except  to  punish  a  rebellion 
against   established   authority.      To  resort  to  such    measures 

1.  Boyd's  Wheaton,  pp.  415-421  ;    Vattel,  bk.  3,  ch.  9,  sees.  i67-'8  ;  Man- 
ning, p.  186. 


160  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

would  crumble  to  pieces  the  foundation  upon  which  such  gov- 
ernment is  based.  The  temporary  allegiance  of  the  people  is 
owing  only  on  condition  that  they  receive,  in  return,  whatever 
degree  of  protection  to  liberty,  persons,  and  property  may  com- 
port with  a  proper  military  control.  To  destroy  that  property 
with  the  attendant  violation  of  rights  of  person  and  liberty  of 
action  that  would  ensue,  under  any  of  the  special  pleas  set  up 
as  excusing  such  conduct  on  the  part  of  a  belligerent  operat- 
ing against  the  enemy  in  the  field,  would  at  once  dissolve  the 
slender  bonds  uniting  the  government  with  the  people.  The 
latter  would  be  justified  in  rising  against  conquerors  who 
make  use  of  their  power  only  to  despoil  those  whose  territory 
they  have  overrun. 

And  herein  is  discernible  an  important  distinction  between 
the  obligations  of  those  who  give  temporary  allegiance  to  a 
military  and  those  who  owe  permanent  allegiance  to  a  regularly 
established  government.  While  destruction  of  property  and 
laying  waste  territory  would  release  the  former  from  transient 
obligations  to  a  mere  government  of  force,  such  measures  if 
adopted  by  the  permanent  government  to  thwart  an  invader 
would  not  justify  subjects  in  rising  in  rebellion  unless  carried  to 
the  length  of  oppression.  The  reason  of  this  distinction  is 
readily  seen.  In  the  former  case  government  is  established 
over  the  people,  perhaps  with  an  implied  consent,  yet  without 
that  consent  freely  given.  It  is  based  on  military  force  and 
that  alone.  The  correlative  duty  between  such  government 
and  its  temporary  subjects,  as  before  remarked,  is  protection  on 
the  part  of  the  former  and,  so  long  as  that  continues,  quiet 
acquiescence  on  the  part  of  the  latter.  Withdraw  that  protec- 
tion, and  ipso  facto  all  obligations  on  the  part  of  the  governed 
disappear  with  it.  But  permanent  and  regularly  established 
government,  theoretically  at  least,-  rests  upon  the  consent  of  the 
governed.  Government  in  the  latter  case  is  the  agent  of  the 
people  for  the  protection  of  society  and  securing  the  happiness 
of  its  members.  Every  intendment  so  far  as  the  government  is 
concerned  is  in  favor  of  the  sufficiency  of  its  authority  to  act. 
Therefore,  when  as  was  the  case  in  Russia,  first  against  Charles 
XII.  and  afterwards  against  Napoleon,  extensive  tracts  are 
rendered  desolate  and  even  the  capital  burned,  it  was  consid- 
ered as  exemplifying  a  noble,  chaste,  and  self-sacrificing  spirit 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  l6l 

of  patriotism.  Such  violent  measures  are  to  be  sparingly  ap- 
plied ;  only  motives  of  transcendent  importance  can  justify 
resort  to  them.1  A  government  which  should  without  necessity 
imitate  the  Czar's  conduct  would  be  guilty  of  a  crime  against 
its  people.  But  let  the  necessity  arise,  the  sacrifice  be  made  ; 
the  people  have  no  just  cause  of  complaint  ;  no  covenant  with 
them  has  been  broken  ;  while  mankind  for  all  ages  applaud 
such  heroic  acts  as  giving  clearest  proof  of  indomitable  courage 
and  exalted  public  virtue. 

Having  established  by  the  concurrent  authority  of  judicial 
decisions,  the  writings  of  publicists,  the  orders  of  executive 
departments,  and  the  practice  of  military  commanders  that  the 
right  to  seize  upon  or  destroy  enemy  private  property  is  a  per- 
fect one,  modified  in  its  application  by  the  laws  of  nations  as 
exemplified  in  the  rules  of  modern  warfare,  we  will  now  con- 
sider the  kinds  of  propert)T  to  which  the  rule  applies. 

That  property  whatever  its  nature  will  be  found  either  within 
or  without  the  territorial  limits  of  the  appropriating  belligerent. 
If  in  the  former  it  is  equally  as  in  the  latter  predicament  liable 
to  be  seized  upon,  destroyed,  or  otherwise  disposed  of.  We 
have  seen  that  the  property  of  enemies  found  within  the 
United  States  is  liable  to  confiscation  though  its  forfeiture  re- 
quires an  act  of  Congress  authorizing  it."'  In  this  respect  cor- 
poreal property  and  incorporeal  rights,  choses  in  action,  are  on 
the  same  footing.  When  the  case  of  Brown  v.  the  United 
States  was  before  the  circuit  court  in  Massachusetts,  Judge 
Story  laid  down  the  right  to  confiscate  debts  and  enemy's  prop- 
erty found  in  the  country  as  perfect  under  the  law  of  nations. 
And  Chief  Justice  Marshall,  in  delivering  the  opinion  of  the 
Supreme  Court  in  that  case  on  appeal,  observed  that  between 
debts  contracted  under  the  faith  of  laws,  and  property  acquired 
in  the  course  of  trade  on  the  faith  of  the  same  laws,  reason 
drew  no  distinction,  and  that  the  right  of  the  sovereign  to  con- 
fiscate debts  was  precisely  the  same  with  the  right  to  confiscate 
other  propert)r  found  in  the  country.  We  are  at  liberty,  there- 
fore, to  consider  it  an  established  principle  that  it  rests  in  the 
discretion  of  the  legislature  of  the  Union,  by  a  special  law  for 
that  purpose,  to  confiscate  debts  contracted  by  our  citizens  and 

i.  Wheaton,  part  4.  sec.  347.  2.  8  Craiich,  no. 


1 62  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

due  to  the  enemy.1  It  is  true  that  the  chief  justice  remarked 
that  the  enforcement  of  this  right  as  to  debts  is  contrary  to  uni- 
versal practice,  and  upon  this  Chancellor  Kent  observes  that  it 
may  well  be  considered  a  naked  and  impolitic  right,  condemned 
by  the  enlightened  conscience  and  judgment  of  modern  times. 
The  experience  of  this  country,  however,  since  that  time  has 
not  sustained  these  views  as  to  the  softening  of  the  older  rule. 
This,  as  we  have  seen,  was  exemplified  in  the  confiscation  act 
of  July  17th,  1862. 2  In  affirming  the  constitutionality  of  this 
act  the  Supreme  Court  remarked  that  the  Government  had  the 
right  to  seize,  confiscate,  and  dispose  of  all  property  of  the 
enemy  subjects  of  every  description.3  Previously  the  Congress 
of  the  rebel  Confederacy  confiscated  all  property,  movable,  im- 
movable, and  all  rights,  credits,  and  interests  held  within  the 
Confederacy  by  or  for  any  alien  enemy  except  public  stocks  and 
securities.  Concerning  this  Earl  Russell  remarked  that  ' '  what- 
ever may  be  the  abstract  rule  of  the  law  of  nations  on  this 
point  in  former  times  the  instances  of  its  application  in  the 
manner  contemplated  by  the  act  of  the  Confederate  Congress  in 
modern  and  more  civilized  times  are  rare,  and  have  been  so 
generally  condemned  that  it  may  be  said  to  have  become  ob- 
solete." 4  But  it  will  not  be  claimed  that  theories  of  publicists 
and  interested  protestations  of  statesmen  regarding  what 
should  be  the  rule  are  of  as  much  value  in  determining  the 
right  in  this  matter  as  are  the  legislative  acts  of  the  belligerent 
governments.  The  whole  subject  resolves  itself  into  a  ques- 
tion not  of  righc  but  of  expediency.  Granted  that  the  rule 
generally  observed  is  not  to  confiscate  debts  due  the  enemy 
from  our  own  subjects,  still,  when  a  nation  is  either  driven  to 
extremities  in  the  prosecution  of  a  war,  or  for  any  reason  it 
may  reap  an  advantage  by  so  doing,  it  can  safely  be  assumed 
that  it  will  be  done.  This  country  was  more  severely  and 
thoroughly  schooled  in  the  laws  of  war  during  the  four  years 
of  the  rebellion  than  had  been  possible  through  abstract  specu- 
lations of  scholars,  statesmen,  and  jurists  even  in  that  many 
centuries. 

1.   Kent  1,  p.  65.  2.  Ch.  195,  Stat,  at  Lg.  12,  p.  589. 

3.   11  Wallace,  305.  4.  Dana's  Wheaton,  notes  156,  157,  169. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 63 

During  the  Crimean  war  no  attempts  were  made  to  confiscate 
private  property  of  the  enemy,  not  maritime,  remaining  in  the 
country,  or  private  debts,  or  to  arrest  private  persons.  The 
course  pursued  by  the  nations  involved,  and  the  fact  that 
nearly  all  nations  now  have  treaty  stipulations  allowing  a  cer- 
tain interval  of  time  for  the  removal  of  vessels  and  other  prop- 
erty in  case  of  war,  go  far  towards  changing  the  ancient  prac- 
tice. This  circumstance  lays  the  foundation  for  a  change  in 
the  law  of  nations  in  this  regard.  This  much  safely  can  be 
said,  private  property  is  not  now  lost  to  the  owner  unless  its 
confiscation  is  specially  ordered  by  the  highest  political  au- 
thority of  the  State.  Still  it  can  not  be  said  that  a  nation, 
which  for  a  cause  that  it  may  judge  sufficient  should  seize  and 
condemn  such  property,  whatever  its  nature,  had  violated  estab- 
lished law,  although  such  a  course  as  regards  private  debts 
due  to  enemy  subjects  would  be  considered  as  harsh  in  the 
extreme  and  out  of  harmony  with  the  spirit  of  the  age.1 

The  only  exception  to  this  rule  is  that  debts  due  from  the 
State  itself  to  subjects  of  the  enemy  are  not  confiscable.2  Every- 
where in  case  of  war  funds  credited  to  the  public  are  exempt  from 
confiscation  and  seizure.  Phillimore  considers  the  doctrine  of  the 
immunity  of  public  debts  as  one  which  may  happily  be  said  to 
have  no  gainsayers.3  Manning  lays  .it  down  that  such  debts  are 
invariably  regarded  as  sacred  during  war,  and  considers  them  as 
entrusted  to  the  public  faith  and  not  to  be  touched  without  its 
violation.  To  the  same  effect  is  Woolsey,  who  observes  that 
"  all  modern  authorities  agree,  we  believe,  such  debts  ought  to 
be  safe  and  inviolable.  To  confiscate  either  principle  or  in- 
terest would  be  a  breach  of  good  faith,  injure  the  credit  of  a 
nation,  and  provoke  retaliation  on  persons  and  all  private 
property. ' ' 4  Amidst  all  the  extreme  measures  resorted  to  by  the 
respective  belligerents  during  the  wars  waged  between  Great 
Britain  and  France  under  Napoleon,  public  debts  were  never  con- 
fiscated. ' '  The  distinction, ' '  says  Dana,  ' '  seems  to  be  that  a  loan 
to  a  State  is  in  the  nature  of  a  permanent  investment  invited  by 
the  State  itself,  and  the  implication  is  fairly  to  be  made  that 

1.  Dana's  Wheaton,  note  156. 

2.  Bluntschli,  I,  sec.  149;  Manning,  p.  173;  Cobbett,  p.  99;  Ferguson,  p 

285.  3.  Vol.  3-    135.  4-  Sec.  tiS. 


164  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

the  foreign  creditor  is  not  to  lose  it  in  ease  of  war.  The  whole 
turns  on  this  question,  what  has  the  foreign  creditor  a  right  to 
assume  will  be  the  result  in  case  of  war  ?  The  policy  of  a 
State  to  have  its  loans  open  to  the  people  of  all  nations  as  in- 
vestments secure  against  the  chances  of  war  is  so  obvious  and 
paramount  as  not  only  to  settle  the  practice,  but  to  give  coun- 
tenance to  the  assumption  of  the  creditor  that  the  faith  of  the 
State  was  impliedly  pledged  to  him  to  that  effect."  1  The  Con- 
federate confiscation  acts  of  6th  August,  1861,  expressly  ex- 
cepted from  seizure  public  stocks  and  securities  held  by  alien 
enemies.  Wildman  says  :  "It  will  not  be  easy  to  find  an  in- 
stance where  a  prince  has  thought  fit  to  make  reprisals  upon  a 
debt  due  from  himself  to  private  men  ;  there  is  a  confidence  that 
this  will  not  be  done. '  A  private  man  lends  money  to  a  prince 
upon  the  faith  of  an  engagement  of  honor,  because  he  can  not 
be  compelled  like  other  men  in  an  adverse  way  in  a  court  of 
justice.  So  scrupulously  did  England,  France,  and  Spain  ad- 
here to  this  public  faith  that  during  war  they  suffered  no  in- 
quiry to  be  made  whether  any  part  of  the  public  debts  was  due 
to  subjects  of  the  enemy,  though  it  is  certain  many  English 
had  money  in  French  funds  and  many  French  had  money  in 
ours."  2 

Article  X  of  the  treaty  of  1794  between  the  United  States 
and  Great  Britain  provided  that  neither  debts  due  from  the 
individuals  of  one  to  those  of  the  other  nation,  nor  shares  nor 
moneys  which  they  may  have  in  the  public  funds  or  in  the 
public  or  private  banks,  should  in  event  of  war  or  national  dif- 
ference be  sequestered  or  confiscated.  And  the  reason  given 
was  that  it  was  unjust  and  impolitic  that  debts  and  engage- 
ments contracted  and  made  by  individuals  having  confidence 
in  each  other  and  in  their  respective  governments  should  ever 
be  destroyed  or  impaired  by  national  authority  on  account  of 
national  differences  and  discontents. 

What  has  thus  far  been  said  in  regard  to  seizing  and  appro- 
priating particular  species  of  enemy  property  relates  especially 
to  transactions  occurring  within  the  territory  of  the  appropria- 
ting belligerent.     But  military  government  in  the  sense  here 

I.   Dana's  Wheaton,  note  157  ;  see  Halleck,  eh.  15,  sec.  17. 
2.  Vol.  2,  pp    10,  11. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 65 

used  is  established  over  hostile  territory  alone.  Hence  the  rules 
of  law  applicable  in  the  former  case  are  not  necessarily  those 
governing  the  appropriation  of  enemy  property  in  the  latter. 

The  generous  spirit  which  now  characterizes  dealings  with 
enemy's  property  found  within  the  territory  of  a  belligerent 
power  pervades  not  one  but  all  civilized  nations.  It  is  with  the 
sole  object  in  view  of  making  that  spirit  manifest  that  the  preced- 
ing remarks  have  been  made.  And  while  rules  touching  property 
so  situated  do  not  necessarily  regulate  practices  under  military 
government,  yet  they  do  indicate  the  principles  which  should 
guide  commanders  in  dealing  with  enemy  property  in  territory 
militarily  occupied. 

We  shall  now  proceed  to  consider  the  rights,  duties,  and 
obligations  of  the  commander,  within  a  district  over  which 
military  government  has  been  established,  regarding  various 
kinds  of  property  found  therein  belonging  either  to  subjects  of 
the  enemy  or  the  enemy  State. 

First,  as  to  movable  property  of  enemy  subjects.  This  is 
not  considered  as  transferred  to  the  conqueror  by  the  mere  fact 
of  belligerent  occupation  of  the  country.  To  work  such  a 
transfer  of  proprietary  rights  some  positive  and  unequivocal 
act  of  appropriation  is  essential. '  The  invading  or  occupying 
army  will  take  all  movables  which  are  directly  or  primarily 
capable  of  use  in  war.  This  is  because  they  are  in  substance 
contraband  of  war."  Whatever  military  necessities  may  re- 
quire as  livestock,  provisions,  and  clothing  may  also  be  taken. 
Whether  or  not  compensation  shall  be  made  for  movables  of 
that  description  is  matter  of  State  or  belligerent  policy  solel}7.3 
The  title  to  personal  enemy  property  on  land  passes  by  capture.4 
Whatever  of  movable  property  or  of  rents  and  profits  appertain- 
ing to  immovable  property  he  actually  takes  possession  of  he 
acquires  good  title  to.5  Moreover,  property  of  persons  residing 
in  enemy  country  is  deemed  in  law  hostile  because  of  its  situ- 
ation, and  is  subject  to  seizure  without  inquiring  regarding  the 

1.  Wneaton,  sec  31  ;  Bluntschli,  I,  sec    143  ;  9  Wallace,  540. 

2.  13  Wall,  136.  3.  Wheaton,  Dana's  note,  169. 

4.  Whiting  War  Powers,  p.  48;  Vattel,  book  3,  cli.  13,  sec.    196;  Halleck, 

ch.  19,  sees.   7  and  12  ;  92  U.  S.,  195  ;  9  Wallace,  540. 

5.  Manning,  p.  188. 


1 66  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

nationality,  opinions,  or  predilections  of  the  owner.1  If  for 
any  reason  it  should  be  exempt  it  is  for  the  owner  if  called 
upon  to  establish  that  fact.2  The  rule  sometimes  laid  down 
that  to  become  the  property  of  the  captor  firm  possession  of 
movables  must  be  held  for  twenty-four  hours3  is  not  in  accord 
with  either  the  practice  or  the  better  authorities.4  "  Rights  of 
possession  in  private  property,"  says  the  Supreme  Court  of  the 
United  States,  "are  not  disturbed  by  the  capture  of  a  district 
or  country  or  of  a  city  or  town  until  the  captor  signifies  by  some 
declaration  or  act,  and  generally  by  actual  seizure,  his  deter- 
mination to  regard  a  particular  description  of  property  as  not 
entitled  to  the  immunity  conceded  in  conformity  with  the  hu- 
mane maxims  of  public  law  ;  "  and  again,  "  the  right  of  pos- 
session in  private  property  is  not  changed  in  general  by  capture 
of  the  place  where  it  happens  to  be,  except  upon  actual  seizure 
in  obedience  to  the  orders  of  the  commanding  general."  5 

This  question  as  to  just  what  is  necessary  to  vest  perfect 
title  in  the  conqueror  to  movable  private  property  on  land  be- 
comes of  practical  importance  in  case  it  again  comes  under  the 
dominion  of  the  now  vanquished  State. 

By  the  recognized  right  of  post  liminium,  things  taken  by 
the  enemy  are  restored  to  their  former  status  or  former  owners 
on  coming  again  into  the  power  of  the  nation  to  which  they 
belonged.6  In  return  for  their  allegiance  the  sovereign  is  bound 
to  protect  the  persons  and  property  of  his  subjects  and  to  de- 
fend them  against  the  enemy.  When,  therefore,  a  subject  or 
any  part  of  his  property  has  fallen  into  the  enemy's  possession, 
should  any  fortunate  event  bring  them  again  into  the  sover- 
eign's power  it  is  undoubtedly  his  duty  to  restore  them  to 
their  former  condition,  to  establish  the  persons  in  their  rights 
and  obligations,  to  give  back  the  effects  to  the  owners — in  a 
word,  to  replace  everything  on  its  footing  previous  to  capture.7 
But  title  by  capture  is  as  valid  as  any  other  ;  and  when  by  the 
proper  act  title  to  movable  property  is  divested  out  of  the 

i.  Whiting,  p.  57  ;  Vattel,  bk.  3,  ch.  5,  sec.  75  ;  2  Black,  674  597  U.  S.,  60  ; 

The  Vrow  Anna,  5,  C.  Rob.,  17  ;  2  Wildman,  Int.  Law  1,  9. 
2.  Vattel,  bk.  3,  ch.  5,  sec.  75  ;  2  Wallace,  275.  3.  Kent,  vol.  1,  p.  no. 

4.  vSee  authorities  4,  p.  165  ante  ;  also  Young  v.  U.  S.,  97  U.  S.,  p.  60. 

5.  9  Wallace,  540-1.  6.   Vattel,  bk.  3,  ch.  14,  sec.  204  ;  Kent,  I,  p.  108. 
7.  Vattel,  bk.  3.  ch.  14,  sec.  205. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 67 

enemy  owner  and  vested  in  the  conqueror,  the  property  be- 
comes in  law  that  of  the  conqueror.  If  he  then  alienate  it  the 
alienee,  except  he  be  a  subject  of  the  deposed  sovereignty,  has 
a  perfect  title  against  the  world,  and  the  right  of  post  liminium 
could  not  apply.1  The  exception  just  mentioned  is  based  on 
public  policy  ;  no  nation  recognizes  the  right  of  its  subjects 
pecuniarily  to  assist  the  enemy  by  becoming  purchasers  of 
property  appropriated  under  such  circumstances — an  act  at 
variance  with  the  plainest  obligations  of  good  citizenship.2  If, 
however,  the  conqueror's  title  had  not  become  complete,  neither 
could  that  of  his  alienee  be  so  ;  and  should  the  property  again 
pass  under  the  dominion  of  the  former  sovereign,  the  alienee 
could  be  ousted  from  possession  under  the  broad  and  sacred 
right  of  post  liminium.  To  protect  purchasers  it  thus  becomes 
practically  important  to  determine  what  acts  vest  perfect  title 
to  movable  private  property  in  the  conqueror.  And  it  is  be- 
lieved that  the  true  test  is  that  laid  down  by  the  Supreme 
Court  before  mentioned,  namely,  "actual  seizure  in  obedience 
to  the  orders  of  the  commanding  general."3 

"  The  actual  seizure  "  of  this  rule  does  not  mean  possession 
merely,  but  possession  with  the  ability  to  retain  and  utilize  it 
as  one's  property.  Upon  this  point  it  has  been  well  observed 
that,  supposing  a  foreigner  come  into  our  country,  buys  a  por- 
tion of  the  booty  which  a  party  of  enemies  have  just  taken 
from  us,  our  men  who  are  in  pursuit  of  this  party  may  very 
justly  seize  on  the  booty  which  that  foreigner  was  over-precip- 
itate in  buying.  Apposite  to  this,  Grotius  quotes  fron  De  Thou 
the  instance  of  the  town  of  Ljerre  in  Brabant,  which  having 
been  captured  and  recaptured  on  the  same  day,  the  booty 
taken  from  the  inhabitants  was  restored  to  them.  The  natural 
reason  of  the  conduct  adopted  towards  the  inhabitants  of  Ljerre 
was  that  the  enemy  being  taken  as  it  were  in  the  fact  and  be- 
fore they  had  carried  off  the  booty,  it  was  not  looked  upon  as 
having  absolutely  become  their  property  or  been  lost  to  the  in- 
habitants.* 

J.  Manning,  p.  190.  2.   Halleek,  ch.  19,  sec.  5. 

3.  U.  S.  v.  Padelford,  9  Wallace,  541. 

4.  Vattel,  bk.  3,  ch.  13,  sec.  196. 


168  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

"  Movables,"  says  Kent,  "  are  not  entitled  by  the  strict  rules 
of  the  laws  of  nations  to  the  full  benefit  of  postliminy  unless 
retaken  from  the  enemy  promptly  after  capture,  for  then  the 
original  owner  neither  finds  a  difficulty  in  recognizing  his 
effects,  nor  is  presumed  to  have  relinquished  them.  Real  prop- 
erty is  easily  identified,  and,  therefore,  more  completely  within 
the  rights  of  postliminy  ;  and  the  reason  for  the  stricter  limita- 
tion of  it  in  respect  to  personal  property  arises  from  its  transi- 
tory nature  and  the  difficulty  of  identifying  it,  and  the  con- 
sequent presumption  that  the  original  owner  had  abandoned  the 
hope  of  recovery. ' '  !    From  all  which  we  infer  that  seizure  under 


i.  I,  p.  ioS  ;  Vattel,  bk.  3,  eh.  14,  sec.  209. 

Note. — In  considering  the  effects  of  post  liminium  in  connection  with 
military  government,  Mr.  Hall  reduces  them  to  three.  (1)  Certain  lim- 
itations to  the  operation  of  the  right  of  post  liminium  in  the  case  of  oc- 
cupied territory.  (2)  The  effect  of  acts  done  by  an  invader  in  excess  of 
his  rights.  (3)  The  effect  of  the  expulsion  of  an  invader  by  a  power  not 
in  alliance  with  the  occupied  but  vanquished  State. 

As  to  the  first,  post  liminium  does  not,  except  in  a  very  few  cases,  wipe 
out  the  effects  of  acts  done  by  the  invader  which  it  is  within  his  com- 
petence to  do.  Judicial  acts  under  his  control,  when  not  of  a  political 
complexion  ;  administrative  acts  which  take  effect  during  continuance  of 
his  control  ;  various  acts  done  by  private  persons  under  sanction  of  muni- 
cipal law,  remain  good.  Otherwise  invasion  would  paralyze  the  social 
fabric.  As  between  State  and  individuals  the  evil  would  scarcely  be  less. 
For  instance,  it  would  be  hard  that  payment  of  taxes  under  duress  should 
be  ignored,  and  it  would  be  contrary  to  general  interests  that  sentences 
passed  upon  criminals  should  be  annulled  because  military  government 
had  ceased.  Political  acts  by  the  invader  fall,  as  of  course,  with  his  con- 
trol. So  do  all  punitive  sentences  for  acts  which  were  simply  prejudicial 
to  the  occupier's  military  interests  without  being  crimes  or  offences  against 
municipal  law. 

Upon  the  second  point  it  is  true  that  if  the  invader  exceeds  his  legal 
authority  when,  for  instance,  he  alienates  public  domain,  the  reinstated 
government  may  ignore  his  acts.  The  principle  of  post  liminium  here 
applies. 

Upon  the  third  point,  which  is  of  less  practical  importance  than  the 
others,  it  may  be  asserted,  that  so  soou  as  mere  military  government  has 
ceased  because  the  invader  is  driven  out  by  a  third  power  not  an  ally  of 
the  deposed  State,  the  principle  of  post  liminium  properly  would  restore 
the  latter  to  its  original  jurisdiction.  But  if  military  has  by  any  means 
become  permanent  governmeut,  then  it  would  be  for  the  third  power  to 
decide  for  itself  whether  it  would  admit  the  original  State  to  resume  its 
sway.     (Int.  Law,  pp.  450-'3.) 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  169 

competent  military  authority  with  a  view  to  appropriation,  to- 
gether with  the  power  to  hold,  and  the  actual  retaining  in 
possession  until  proprietary  rights  can  fairly  be  exercised  over 
it,  passes  legal  title  to  movable  enemy's  property  taken  in  ter- 
ritory subject  to  military  government. 

Thus  far  corporeal  property  has  alone  been  treated  of,  but  the 
same  rules  of  appropriation  govern  as  to  incorporeal  rights  ap- 
pertaining to  things — they  follow  the  fortune  of  the  things  them- 
selves.1 This  rule,  analogous  to  that  which  governs  in  case  of 
incorporeal  rights  appurtenant  and  accessory  to  real  property,  is 
founded  on  reason  and  universal  custom.  Whatever  of  rents 
or  profits  adhere  to  or  issue  out  of  movable  property  on  land 
must,  equally  with  like  incidents  attaching  to  real  property,  be 
subject,  under  military  government,  to  appropriation.  In  the 
ordinary  course  of  business  the  former  as  compared  with  the 
latter  will  be  insignificant  in  value;  still,  on  that  account,  the 
right  to  seizure  is  none  the  less  clear.  On  principle  there  ex- 
ists no  reason  to  distinguish  between  these  two  sources  of  reve- 
nue. Either  or  both  may  be  levied  upon  by  the  conqueror  to 
replenish  his  treasury,  cut  off  the  possibility  of  their  being  trans- 
mitted to  the  enemy  and  so  increase  the  coercive  power  brought 
to  bear  upon  him. 

Of  these  incorporeal  rights  it  may  be  remarked  that  they  can 
not  in  themselves  be  objects  of  possession;  they  are  not  external 
things  on  which  the  conqueror  can  lay  his  hand.  Their  ex- 
istence is  merely  in  idea  and  abstract  contemplation,  though 
their  effects  may  be  frequently  objects  of  one's  bodily  senses. 
They  are  rights  which  exist  in  mental  apprehension  as  con- 
nected with  a  given  subject  to  which  they  are  attached  and 
with  a  material  object  upon  which  they  can  be  exercised.  It 
is,  therefore,  only  by  the  actual  possession  of  the  corporeal 
thing  to  which  the  incorporeal  right  attaches  that  the  conqueror 
may  be  considered  as  possessed  of  the  latter,  but,  if  he  have 
the  former  the  latter  is  considered  as  going  with  it. 

With  regard  to  private  debts  between  parties  the  case  is  dif- 
ferent.2 "  It  is  by  no  means  to  be  admitted,"  said  the  United 
States  Supreme  Court,  ' '  that  a  conquering  power  may  compel 

1.  Wheatou,  Dana's  note,  169,  pp.  433,  439. 

2.  96  U   S.,  176  ;  Manning,  p.  188. 


170  MILITARY    GOVERNMENT   AND   MARTIAL    LAW. 

private  debtors  to  pay  their  debts  to  itself,  and  that  such  pay- 
ments extinguish  the  claims  of  the  original  creditor.  It  does 
indeed  appear  to  be  a  principle  of  international  law  that  a  con- 
quering State,  after  the  conquest  has  subsided  into  permanent 
government,  may  exact  payment  from  local  debtors  of  the  con- 
quered power,  and  that  payments  to  the  conqueror  discharge 
the  debt  so  that  when  the  former  government  returns  the 
debtor  is  not  compelled  to  pay  again.  This  is  the  rule  stated 
in  Phillimore  on  International  Law.1  But  the  principle  has  no 
applicability  to  debts  not  due  to  the  conquered  State.  Neither 
Phillimore,  nor  Bynkershoek,  whom  he  cites,  asserts  that  the 
conquering  State  succeeds  to  the  rights  of  a  private  creditor.2 

Incorporeal  rights  of  a  purely  personal  character  adhering  to 
the  person  do  not  pass  to  the  conqueror  by  the  mere  fact  of  his 
occupying  a  region  in  which  the  owner  of  the  rights  resides,  or 
even  by  the  possession  of  his  person.  Nothing  short  of  the  re- 
duction of  the  owner  to  slavery — no  longer  a  permissible  pro- 
ceeding— confiscates  such  rights.  In  this  class  come  debts 
and  other  personal  obligations.3 

I^egal  proceedings  in  courts  established  by  or  permitted  to 
perform  their  functions  under  military  government,  can  not 
impair  the  rights  of  citizens  of  the  occupied  territory  who  are 
compulsorily  absent  within  the  lines  of  the  enemy  and  so  out 
of  reach  of  process  of  those  courts.  This  principle  affirmed  in 
Dean  v.  Nelson4  has  been  reaffirmed  in  numerous  decisions  of 
the  United  States  Supreme  Court.  In  the  case  mentioned, 
Dean,  a  resident  of  Cincinnati,  Ohio,  was,  at  the  breaking  out 
of  the  civil  war,  owner  of  a  large  amount  of  capital  stock  in  the 
Memphis,  Tennessee,  gas  light  company.  Before  commercial 
intercourse  was  interdicted  between  loyal  States,  including 
Ohio,  and  those  in  insurrection,  including  Tennessee,  he  sold 
this  stock  to  Nelson,  a  resident  of  Memphis.  A  note,  duly  ex- 
ecuted by  the  latter,  was  given  to  Dean,  and  a  mortgage  upon 
the  grantee's  interest  as  a  stockholder  was  given  to  secure  pay- 
ment.     The  civil  war  rapidly  intervened  ;    the  conditions  of 

1.  Vol.  3,  part  12,  ch.  4. 

2.  Planters  Bank  v.  Union   Bank,  16  Wall,  496-'7  ;  Halleck,  ch.  15,  sec. 
18  ;  also  ch.  32,  sec.  26 ;  Cobbett,  p.  155,  mentions  that  debts  due  the  de- 
State  are  differently  regarded. 

3.  Dana's  Wheaton,  note  169,  p.  439.  4.   10  Wallace,  158. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  171 

the  note  could  not  be  complied  with.  Memphis  was  in  rebel 
enemy  territory  ;  Cincinnati,  in  a  loyal  State.  While  war  was 
flagrant,  and  Memphis  remained  under  rebel  control,  Nelson 
transferred  some  of  this  stock  to  his  wife  and  other  shares  to 
one  May.  On  June  6,  1862,  one  year  after  the  sale  by  Dean, 
Memphis  was  captured  by  the  Union  forces  and  military  gov- 
ernment established  there  and  in  the  immediate  vicinity. 
Nelson  and  his  wife  remained  in  the  city  after  its  capture,  so 
long  as  permitted  by  the  Union  commander,  but  May  resided 
permanently  within  the  Confederate  lines.  In  retaliation  for 
some  guerrilla  outrages  perpetrated  in  the  vicinity  the  Nelsons 
were  expelled  from  the  Federal  lines  and  not  allowed  to  re- 
turn, although  they  requested  permission.  In  September, 
1863,  Dean  filed  a  petition  before  the  civil  court  or  commission 
instituted  by  the  Federal  commander  at  Memphis  in  April 
preceding,  for  hearing  and  determining  complaints  and  suits  of 
loyal  citizens,  setting  forth  all  the  facts  and  praying  for  the  fore- 
closure of  the  mortgages  because  of  the  alleged  failure  on  the 
part  of  the  mortgagor  to  fulfill  the  conditions  subsequent  of 
the  note.  Nelson  and  wife  and  May  were  made  defendants  ;  a 
return  '  not  found '  was  entered,  and  publication  of  notice  to 
them  to  appear  was  made  in  accordance  with  the  laws  of  Ten- 
nessee existing  prior  to  the  rebellion.  No  appearance  being 
made,  decree  went  for  the  plaintiff. 

After  the  rebellion  was  suppressed  and  when  hostilities  had 
ceased,  the  civil  courts  of  the  land  resuming  their  accustomed 
sway,  the  defendants  filed  a  bill  in  the  Circuit  Court  of  the 
United  States  for  West  Tennessee  praying  that  the  stock 
might  be  decreed  as  belonging  to  them,  and  for  general  relief. 
The  Circuit  Court  decreed  accordingly,  in  substance,  yet  taking 
care  to  cover  the  equities  affecting  all  parties  ;  but  in  effect  it 
reversed  the  decision  of  the  civil  commission.  Dean  appealing 
to  the  Supreme  Court,  the  decree  of  the  Circuit  Court,  modified 
in  important  particulars,  was  affirmed.  The  proceedings  before 
the  civil  commission,  it  was  remarked,  were  fatally  defective  ; 
the  defendants  in  those  proceedings  were  within  the  rebel  lines, 
which  it  was  unlawful  for  them  to  cross;  two  of  them  had  by  mili- 
tary authority  been  expelled  the  Union  lines  and  had  not  re- 
turned, the  other  being  permanently  without  those  lines.  Under 
such  circumstances  notice  to  them   through  a  newspaper  was 


172  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

a  mere  idle  form  ;  they  could  not  lawfully  see  or  obey  it ;  there- 
fore, as  to  them  the  court  concluded  that  the  proceedings  were 
wholly  void  and  inoperative. 

The  principle  was  thus  established  that  even  in  time  of  war 
one  could  not  first  be  rendered  powerless  by  superior  enemy 
force  to  defend  himself,  and  while  in  that  situation  be  deprived 
by  that  enemy  of  his  property  under  the  forms  of  judicial  pro- 
ceedings. 

The  case  of  Lasere  v.  Rochereau  was  substantially  to  the 
same  effect  as  the  preceding.  Lasere,  a  resident  of  New 
Orleans,  was  one  year  after  the  capture  of  that  city  by  the  Fed- 
eral forces  expelled  the  Union  lines,  and  there  remained  until 
after  the  close  of  the  war.  During  his  absence  certain  premises 
of  his  were  sold  in  New  Orleans  on  process  instituted  to  fore- 
close mortgages.  Immediately  after  the  cessation  of  hostilities 
Uasere  sought  to  vacate  these  proceedings.  His  efforts  resulted 
in  an  adverse  judgment  in  the  Supreme  Court  of  Louisiana. 
Being  taken  by  writ  of  error  to  the  United  States  Supreme 
Court,  the  judgment  was  there  reversed.  "It  is  contrary  to 
the  plainest  principles  of  reason  and  justice,"  said  the  court, 
' '  that  any  one  should  be  condemned  as  to  person  or  property 
without  an  opportunity  to  be  heard.  Scant  time  was  given  the 
plaintiff  in  error  to  prepare  for  his  removal  within  the  Confed- 
erate lines.  During  his  absence  he  had  no  legal  right  to  appoint 
an  agent  or  to  transact  any  other  business  in  New  Orleans. 
Dasere  doubtless  knew  nothing  of  the  proceedings  against  him, 
and  if  he  had  such  knowledge  he  was  powerless  to  do  anything 
to  protect  his  rights."  1 

Closely  allied  with  the  cases  of  Nelson  and  L,asere  was  that 
of  McVeigh  v.  United  States,  wherein  the  Supreme  Court,  after 
stating  the  recognized  rule  of  law,  that  an  alien  enemy  though 
he  has  not  the  right  to  sue  may  be  sued  in  the  courts  of  the 
adverse  belligerent,  maintained  that  when  so  sued  he  had  a 
right  to  appear  and  defend.  If  assailed  there  he  could  defend 
there.  The  liability  and  the  right  are  inseparable.  A  different 
result  would  be  a  blot  upon  our  jurisprudence  and  civilization. 
The  court  could  not  hesitate  or  doubt  on  the  subject.  It  would 
be  contrary  to  the  first  principles  of  the  social  compact  and  of 
the  right  administration  of  justice.2     The  case  arose  in  this 

1.  17  Wallace,  437.  2.   11  Wallace,  267. 


RIGHTS   REGARDING   PRIVATE    PROPERTY.  1 73 

wise  :  under  the  provisions  of  the  confiscation  act  of  July  17, 
1862,  a  libel  of  information  was  filed  in  the  United  States 
District  Court  for  Virginia  for  the  forfeiture  of  certain  real  and 
personal  property  situated  in  that  State  belonging  to  McVeigh, 
who  it  was  alleged  was  a  rebel  and  a  member  of  the  Confed- 
erate army.  At  the  hearing  McVeigh  appeared  by  counsel, 
made  a  claim  to  the  property,  and  filed  an  answer,  showing 
that  at  the  time  he  was  a  resident  of  the  city  of  Richmond 
within  the  Confederate  lines.  On  motion  of  the  attorney  for 
the  United  States  the  claim,  answer,  and  appearance  were 
stricken  from  the  files,  and  for  the  reason  that  being  in  the 
position  of  an  alien  enemy  he  could  have  no  locus  standi  in  that 
forum.  Decree  going  in  favor  of  the  United  States,  it  was 
affirmed  by  the  circuit  court  but  reversed  by  the  Supreme  Court 
on  the  ground  that  McVeigh  had  a  right  to  defend  himself 
wherever  judicially  attacked,  and,  therefore,  that  the  striking 
from  the  files  was  error.  The  courts  in  which  proceedings 
were  instituted  and  carried  on  in  this  case  formed,  it  is  true,  the 
regular  judicial  system  of  the  United  States.  But  inasmuch  as 
the  establishment  of  tribunals  for  trial  of  civil  causes  in  territory 
subject  to  military  government  by  military  authority  has  been 
declared  to  be  legal,  it  is  believed  that  the  same  rule  of  justice 
would  there  apply,  and  that  an  alien  enemy  proceeded  against 
in  his  property  before  such  military  courts  would  be  granted 
the  privilege  of  appearing  and  defending  himself.  Not  only 
would  fair  dealing  demand  this,  but  we  have  seen  that  in  the 
cases  of  Nelson  and  L,asere,  the  proceedings  were  declared  void 
because  the  parties  defendant  were  prevented  by  the  same 
paramount  authority  which  organized  and  protected  the  courts 
from  making  any  defence. 

As  to  immovable  private  property  in  territory  subject  to 
military  government,  the  same  rule  applies  as  to  movable  prop- 
erty. The  mere  fact  of  military  occupation  does  not  affect  it. 
If  the  conqueror  proposes  to  appropriate  either  the  property 
itself,  or  the  rents,  profits,  or  other  incorporeal  interests  issuing 
out  of  or  attached  thereto,  it  remains  for  him  to  exercise  this 
his  undoubted  right  by  some  special  act.1  It  has  been  asserted 
that  the  right  of  appropriation  should  extend  no  further  than 

1.  Dana's  Wheaton,  p.  43S  ;  Halleck,  ch.  19,  sees.  2,  12,  also  cli.  32,  sec.  12. 


174  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

to  movable  property,  chattels,  which  can  be  carried  away. 
This  on  the  ground  that  as  war  is  a  temporary  relation  of 
nations,  the  conduct  of  the  parties  thereto  should  be  regulated 
accordingly  ;  and  as  real  property  must  remain  after  the  ter- 
mination of  the  war,  and  may  revert  to  its  former  owners  after 
peace,  it  ought  not  to  be  alienated  by  the  conqueror  so  long  as 
the  war  continues  and  until  the  conquest  is  complete.1  The 
conclusiveness  of  this  argument  is  not  conceded.  The  necessity 
of  self-preservation  and  the  right  to  punish  an  enemy,  to  de- 
prive him  of  the  means  of  injuring  us  by  converting  those  means 
to  our  own  use  against  him,  lie  at  the  foundation  of  the  rule 
which  sanctions  the  appropriation  of  enemy  property  at  all,  and 
it  is  difficult  to  understand  why  that  right  should  be  limited  to 
any  particular  kinds.  The  true  test  on  principle  must  be  this  : 
first,  is  this  hostile  property  ;  second,  will  its  appropriation 
strengthen  us  and  weaken  the  enemy  ?  As  to  the  first,  its  mere 
location  in  territory  subject  to  military  government  stamps  on 
it  the  enemy  character  ; 2  and  as  to  the  second,  the  fact  that  pos- 
session by  the  vanquished  party,  if  not  of  the  property  itself  at 
least  of  rents  and  profits  arising  therefrom,  may  increase  his 
pecuniary  resources  and  so  enable  him  to  maintain  the  war, 
justifies  his  opponent  in  appropriating  both  property  and  profits.3 

If  the  territory  be  not  completely  conquered,  its  people  sub- 
jugated, the  laws  of  war  regard  its  occupation,  although  de  facto 
accomplished,  yet  as  temporary  only  until  its  fate  is  determined 
by  the  treaty  of  peace.4  Having  possessed  himself  of  the 
provinces,  towns,  lands,  and  buildings  in  the  district  from  which 
by  force  of  arms  he  has  excluded  the  enemy,  he  has  a  perfect 
right  to  retain  and  use  them  in  such  manner  as  will  best  secure 
his  interests.  Incorporeal  rights  which  adhere  to  or  issue  out 
of  immovable  private  property  become  when  reduced  into  pos- 
session, personal  property,  and  are  subject  to  the  rules  already 
discussed  regarding  its  disposition. 

The  mere  possession  of  the  documents  by  which  the  exist- 
ence of  those  incorporeal  rights  are  usually  evidenced,  without 

i.  Manning,  185. 

2.  Whiting,  p.  57  ;  Prize  Cases,  2  Black,  674 ;  Vattel,  bk.  3,  ch.  5,  sec.  75  ; 

9  Crauch,  197. 

3.  Harrison  v.  Myer,  92  U.  S.,  111 ;  Twiss,  Law  of  Nations,  p.  126. 

4.  1  Peters,  542. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 75 

the  manual  possession  of  the  immovable  property  to  which  they 
appertain,  would  not  of  itself  give  the  belligerent  authority  in 
law  to  gather  into  his  own  hands  the  moneys  which  are  the 
usual  and  natural  fruits  of  such  rights.1  His  receipt  to  the 
obligor  under  such  circumstances  would  not  release  the  latter 
from  his  obligation.  In  spite  of  such  payment  the  original 
obligee  after  the  enemy  had  retired  could  proceed  to  recover 
whatever  was  his  due.  The  reason  for  this  is  that  so  far  as 
private  property  is  concerned  the  rights  of  the  conqueror  ex- 
tend during  military  government  no  further  than  those  things 
that  he  has  physically  reduced  into  his  possession. 

That  the  authorized  agents  of  military  government  have  a 
right  to  seize  upon  immovable  equally  with  movable  private 
property  found  in  the  territory  occupied  is  indisputable.  But 
it  does  not  follow  that  the  title  to  each  species  is  the  same.  On 
the  contrary  it  is  essentially  different.2  It  has  been  pointed  out 
that  from  considerations  of  public  policy  the  vanquished  power 
would  not  recognize  the  right  of  its  subjects,  now  owing  a  tem- 
porary allegiance  to  the  military  government,  to  purchase  from 
agents  of  the  latter  captured  movable  property  of  fellow-sub- 
jects ;  but,  with  this  exception,  the  purchaser  of  movable  cap- 
tured property  on  land  acquires  a  perfect  title  so  soon  as  the 
property  is  in  the  firm  possession  of  the  captor.3  On  the  other 
hand  the  purchaser  of  immovable  private  property  takes  it  at 
the  risk  of  being  evicted  by  the  original  owner  when  the  per- 
manent government  has  returned  to  power.  This  upon  the 
principle  of  post  liminium. 

As  under  military  government  the  conqueror  rules  by  virtue 
of  the  sword  alone,  his  title  extends  no  further  and  lasts  no 
longer  than  his  physicial  force  excludes  the  enemy.  While  he 
thus  rules  he  can  do  with  property  found  in  the  territory  as  either 
inclination  or  policy  dictates.  That  which  he  can  seize,  convert 
to  his  own  use  on  the  spot,  sell  to  others,  or  carry  away,  he  can 
make  his  own  absolutely.  But  the  rule  of  superior  force  marks 
the  limitation  of  his  right.  When  he  ceases  to  exercise  that 
force  and  retires  from  the  country   all  rights  he  had    acquired 

1.  Manning,  pp.  iS8-'q.  2.  Manning,  p.  185. 

3.  Kirk  v.  Lynd,  106  U.  S.,  317  ;  Young  v.  U.  S.,  97  U.  S.,  60. 


I76  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

over  immovable  property  at  once  cease.1  The  ancient  owner, 
if  it  has  been  disposed  of,  now  may  return  to  claim  and  re-pos- 
sess what  of  real  property  belongs  to  him.  If,  however,  the 
conquest  becomes  permanent,  the  title  which  the  conqueror  has 
conveyed  to  the  purchaser  becomes  indefeasible.  It  was  before 
a  good  title  against  all  except  the  original  owner  under  the 
right  of  post  limitiium,  which  complete  conquest  has  extin- 
guished. The  conqueror  is  estopped  from  assailing  the  title  of 
his  purchaser.  He  sold  the  rights  which  he  acquired  by  con- 
quest ;  neither  a  formal  treaty  of  peace  ceding  the  territory, 
nor  long  acquiescence  of  the  people  which  sometimes  is  held  to 
have  the  same  effect  as  formal  cession,  can  add  to  these  rights; 
at  most  it  can  only  confirm  that  which  the  conqueror  already 
possessed.  This  being  so,  the  conqueror  having  disposed  of  all 
his  rights  under  conquest  and  acquired  none  since,  he  can  not 
dispute  the  title  of  his  alienee  to  immovable  property ;  the  origi- 
nal owner  is  not  in  a  position  to  question  the  acts  of  the  per- 
manent government,  and  the  result  is  the  complete  extinguish- 
ment of  the  ancient  title. 

In  most  civilized  countries  immovable  private  property  is 
much  more  valuable  than  movable.  Its  sale  would  return 
larger  sums  into  the  coffers  of  the  conqueror,  adding  greatly 
more  to  his  warlike  resources.  His  object  in  alienating  prop- 
erty is  to  add  to  those  resources  and  diminish  those  of  his 
antagonist.  As  subjects  of  the  displaced  government  can  not, 
consistently  with  allegiance  to  their  permanent  sovereign,  be- 
come purchasers  of  movable  private  proper ty,  so  much  the 
greater  are  their  obligations  to  refrain  from  purchasing  the 
more  valuable  immovable  property,  the  direct  result  of  which 
would  be  that  they  would  furnish  the  means  to  enable  the 
enemy  to  prosecute  the  war.  This  they  may  not  do.  The 
promptings  of  patriotism  should  deter  them,  though  interest 
tempts  them  from  the  path  of  duty.  But  of  this  they  may  be 
certain  :  they  not  only  risk  the  loss  of  their  purchase  money  on 
the  restoration  of  the  original  sovereign  to  his  dominions,  but 
they  expose  themselves  to  punishment  for  voluntarily  assisting 
the  enemy.  If,  however,  they  choose  to  stifle  sentiments 
which  should  ever  animate  loyal  breasts,  and  brave  the  just  re- 

i.  See  "The  Astrea,"  i  Wheaton,  125. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 77 

sentment  of  the  government  to  which  they  owe  paramount  al- 
legiance, they  run  no  further  risks  ;  and  if  temporary  conquest 
settles  into  established  government,  all  the  rights  they  have  ac- 
quired will  be  confirmed.  Subjects  of  the  conqueror  may  be- 
come purchasers  with  no  other  risk  than  that  of  being  ousted 
by  the  original  owner  on  the  restoration  or  recapture  of  the  im- 
movable property.  The  same  may  be  said  of  purchase  by  the 
subjects  of  a  neutral  State.  But  the  latter  might  be  deemed 
in  some  cases  a  hostile  act.  The  effect  of  it  is  to  render  pecun- 
iary assistance  to  one  party  to  the  war  to  the  prejrdice  of  the 
other.  It  is  liable,  therefore,  to  be  regarded  as  not  within  the 
limits  of  legitimate  neutral  conduct,  and  so  attach  to  the  pur- 
chaser the  character  of  an  enemy  to  the  power  adversely  af- 
fected.1 

The  Roman  law,  often  asserted  with  unrelenting  severity,  was 
to  take  all  property,  both  personal  and  real,  from  the  van- 
quished J  Nor  is  this  matter  of  surprise.  Wars  were  carried 
on  between  popular  republics  and  communities.  States  pos- 
sessed very  little,  and  the  quarrel  was  the  common  cause  of  all 
the  citizens.  Such  too  was  the  fate  of  the  Roman  provinces 
subdued  by  the  northern  barbarians  on  the  decline  and  fall  of 
the  western  empire.  Most  of  the  lands  belonging  to  the  van- 
quished provinces  were  confiscated  and  partitioned  out  among 
the  conquerors. 

William  of  Normandy  pursued  the  same  policy  upon  the  con- 
quest of  England.  Blackstone,  indeed,  denies  this,  and  asserts 
that  dividing  up  the  lands  of  the  subjugated  English  resulted 
not  from  the  conquest  of  the  island,  but  from  the  forfeitures 
following  the  numerous  rebellions  of  the  English  nobility.3 
But  surely  few  of  those  revolutions  which,  both  in  history  and 
in  common  language  have  been  denominated  conquests,  appear 
equally  violent  or  were  attended  with  so  sudden  an  alteration 
both  of  power  and  property.  The  Normans  and  other  foreigners 
who  followed  the  standard  of  William,  having  totally  subdued 
the  natives,  pushed  against  them  the  right  of  conquest  to  the 
utmost  extremity.  The  Britons  were  universally  reduced  to 
such  a  state  of  meanness  and  poverty  that  the  English  name 
became  a  term  of  reproach. 

1.  Halleck,  ch.  19,  sec.  5.  2.  Wheaton,  sees.  346,  347. 

3.  Commentaries,  2,  p.  48. 


178  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

Since  that  period,  however,  among  the  civilized  nations  of 
Christendom  conquest,  even  when  confirmed  by  a  treaty  of  peace, 
has  been  followed  by  no  general  or  partial  transfer  of  landed 
property.1  It  may  be  laid  down  as  a  principle  that  so  far  as 
private  immovable  property  is  concerned,  the  modern  usage  of 
nations  which  has  become  law  would  be  violated,  and  that 
sense  of  justice  and  right  which  is  acknowledged  and  felt  by 
the  whole  civilized  world  would  be  outraged  if  it  were  con- 
fiscated and  private  rights  annulled.2  The  inhabitants  of  the 
territory  militarily  occupied  change  temporarily  their  allegiance. 
Their  relation  to  their  former  sovereign  is  for  the  time  being 
dissolved,  but  their  relations  to  each  other  and  their  rights  of 
property  remain  as  a  rule  undisturbed.3 

As  the  establishment  of  military  government  does  not,  except 
in  pursuance  of  special  orders  to  that  effect,  impair  rights  to 
private  property,  it  follows  that  the  power  of  the  people  to 
alienate  such  property  exists  the  same  as  before  the  occupation. 
It  is  a  right  which  inheres  to  ownership.  Unless  the  latter  be 
qualified  by  the  victor,  it  remains  in  full  vigor  during  his  mili- 
tary possession.  In  this  respect  a  municipality  or  corporation 
has  the  same  rights  as  a  natural  person,  and  transfers  which 
they  may  make  under  such  circumstances  are  prima  facie  as 
valid  as  if  made  in  time  of  peace.  Nor  is  the  private  property 
of  a  sovereign  in  this  regard  in  a  different  situation  from  that 
of  a  private  subject.  If  alienation  be  forbidden  by  the  con- 
queror it  will  be  an  exception  to  the  general  rule,  and  he  who 
asserts  it  must  clearly  establish  the  fact. 

The  acts  of  a  de  facto  revolutionary  government  affecting 
property  found  within  territory  controlled  by  it  will  depend  for 
their  validity  upon  the  result  of  the  contest.  If  successful  it 
will  in  reason  confirm  all  acts  regarding  property  either  private 
or  public  adopted  to  strengthen  it  during  its  struggle  for  exist- 
ence.4 This  was  the  course  pursued  by  the  states  and  the 
government  of  the  confederation  during  and  subsequent  to  the 
war  of  the  American  Revolution.5     On  the  other  hand,  should 

1.  Wheaton,  part  4.  sec.  346.  2.  7  Peters,  86-S7. 

3.  Fifth  Robinson's  Reports,  p.  106.  4.  Chase's  Decisions,  136. 

5.  9   Wheaton,   267,   284  ;    4  Cr.,  415  ;  6  Cr.,  286  ;  3  Dall,  1  ;    1  Wheaton, 
300;  4  Wheaton,  453  ;  11  Wallace,  312. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 79 

the  rebellion  be  suppressed  the  legitimate  government  will  treat 
these  and  all  other  measures  emanating  from  the  defunct  gov- 
ernment as  policy  shall  determine.  There  has  never  been  a 
i  I 1  r  field  for  the  exercise  of  this  discretionary  power  than 
that  offered  the  United  States  after  the  civil  war.  Numerous 
causes  covering  in  principle  all  varieties  of  property  transactions 
undertaken  by  authority  of  the  so-called  Confederate  gover- 
ment  were  passed  upon  by  the  Supreme  Court  of  the  United 
States,  and  the  broad  ground  maintained  by  it  that  all  acts  done 
pursuant  to  that  authority  and  in  aid  of  the  rebellion  were 
illegal  and  of  no  validity,  nor  could  the  power  of  the  United 
States  courts  be  successfully  invoked  to  confirm  property  in- 
terests originating  in  such  authority. 

It  was  not  meant  by  this  that  every  business  transaction 
which  took  place  within  the  Confederacy  would  be  treated  as  a 
nullity  if  brought  finally  before  those  courts.  In  some  instances 
they  were  considered  as  if  valid,  and  upheld;  nor  was  it  an  easy 
matter  to  lay  down  a  strict  rule  by  which  would  be  determined 
what  would  or  would  not  thus  be  sustained.  Generally  acts 
necessary  to  peace  and  good  order  among  citizens,  as  acts  sanc- 
tioning and  protecting  marriage  and  the  domestic  relations, 
governing  the  course  of  descents,  regulating  the  conveyance 
and  transfer  of  property  real  and  personal,  providing  remedies 
for  injuries  to  person  and  estate,  and  similar  acts,  were  sanc- 
tioned ;  while  all  those  in  furtherance  or  support  of  rebellion  or 
intended  to  defeat  the  just  rights  of  citizens  of  the  legitimate 
government  were  pronounced  illegal  and  void.1 

In  this  view  it  was  held  that  those  who  during  the  war  aided 
and  abetted  in  the  prosecution  of  a  citizen  within  the  lines  of 
the  Confederacy,  before  a  district  court  organized  by  that  gov- 
ernment, for  giving  assistance  to  the  Union  forces  were  liable 
therefor  after  the  return  of  peace  to  suit  before  a  United  States 
court.  The  act  of  the  Confederate  Congress  creating  the  tri- 
bunal was  declared  to  be  void,  the  court  a  nullity  and  without 
rightful  jurisdiction.  The  forms  of  law  with  which  it  clothed 
its  proceedings  gave  no  protection  to  those  who,  assuming  to 
be  its  officers,  were  the  instruments  by  which  it  acted.2  So 
when  within  the  territory  of  the  rebellion  one  sold   supplies 

1.  7  Wallace,  733.  2.   9  Wall,  201. 


l8o  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

knowing  that  they  were  to  be  used  by  the  Confederate  govern- 
ment it  was  held  that  action  would  not  lie  in  the  national  courts 
after  the  war  to  recover  the  purchase  price.  The  guilty  knowl- 
edge of  the  seller  vitiated  the  transaction.1  In  another  case  a 
loyal  resident  of  a  loyal  State,  acting  under  pressure  of  over- 
whelming necessity,  left  certain  personal  property  within  the 
insurrectionary  district  where,  pursuant  to  the  confiscation 
acts  of  the  rebel  government  it  was  sold  and  the  proceeds 
turned  into  the  Confederate  treasury.  In  an  action  against  the 
purchaser,  brought  in  the  national  courts  after  the  suppression 
of  the  rebellion,  it  was  held  that  the  sale  was  void.2 

Amidst  the  important  and  far-reaching  decisions  of  the  Su- 
preme Court  of  the  United  States  growing  out  of  the  questions 
now  under  consideration  it  was  occasionally  necessary  to  make 
nice  distinctions,  but  the  task  was  performed  in  a  manner  which 
must  ever  redound  to  the  ability,  patriotism,  and  profound  le- 
gal learning  of  that  tribunal,  and  thereby  were  established 
principles  which  will  guide  future  generations  in  their  efforts 
to  cope  with  insurrection  and  in  the  rehabilitation  of  the  State. 

One  of  the  most  interesting  and  in  its  effects  magnanimous 
decisions  was  delivered  in  the  case  of  Thorington  v.  Smith, 
heretofore  alluded  to.3  It  appeared  that  Thorington,  in  No- 
vember, 1864,  while  Alabama  was  controlled  by  the  insurgents, 
sold  certain  lands  there  to  the  defendant  for  $45,000.  At  the 
time  there  was  not  in  circulation  in  that  State  either  gold 
or  silver  or  United  States  currency.  The  only  money  in  use 
was  treasury  notes  of  the  so-called  Confederate  government, 
which  in  form  and  appearance  resembled  bank  bills.  In  these 
$35,000  of  the  purchase  money  was  paid.  A  note  was  given 
for  the  balance,  payable  by  its  terms  in  dollars,  by  which  term 
these  Confederate  notes  were  designated.  When  the  rebellion 
collapsed  these  notes  became  valueless.  Thorington  then  filed 
a  bill  to  enforce  a  vendor's  lien  upon  the  land  sold,  claiming 
the  balance  of  the  stipulated  purchase  money  in  lawful  money 
of  the  United  States.  The  court  below  held  that  the  contract 
was  illegal  beause  payment  was  to  be  made  in  Confederate 
notes.  But  this  judgment  was  reversed  by  the  Supreme  Court 
of  the  United  States,  which  held  that  such  contracts  should  be 
enforced  to  the  extent  of  their  just  obligation. 

1.   12  Wall.,  347.  2.   12  Wallace,  457  ;  in  U.  S.,  51. 

3.  8  Wallace,  I. 


RIGHTS    REGARDING    PRIVATE   PROPERTY.  I  Si 

At  first  blush  it  might  seem  that  this  was  going  a  long  way 
towards  encouraging  rebellion.  The  currency,  the  nature  of 
which  was  here  involved,  was  issued  on  the  authority  of  an  in- 
surrectionary government.  For  the  court  of  last  resort  of  the 
legitimate  government,  therefore,  to  uphold  contracts  payable 
in  this  currency  might  appear  to  be  giving  aid  and  comfort  to 
the  enemy.  In  examining  this  question  the  court  remarked 
that  the  so-called  Confederate  government  was  at  the  time  in 
Alabama  absolutely  supreme  in  authority  ;  that  to  the  ex- 
tent of  its  actual  supremacy,  however  gained,  in  all  matters  of 
government  within  its  military  lines  its  power  could  not  be 
questioned  ;  that  though  this  supremacy  did  not  j  ustify  acts 
of  hostility  to  the  United  States,  it  made  obedience  to  its  au- 
thority in  civil  and  local  matters  not  only  a  necessity  but  a 
duty  ;  that  the  notes  in  question  constituted  almost  exclusively 
the  currency  of  the  insurgent  States  ;  that  while  the  war  lasted 
they  were  used  as  money  in  nearly  all  the  business  transactions 
of  many  millions  of  people,  and,  therefore,  they  must  be  re- 
garded as  a  currency  imposed  on  the  community  by  irresistible 
force  ;  that  contracts  stipulating  for  payments  in  this  currency 
could  not  be  regarded  for  that  reason  only  as  made  in  aid  of 
domestic  insurrection  ;  they  had  no  necessary  relation  to  the 
hostile  government ;  they  relate  to  the  ordinary  course  of  civil 
society,  and  though  they  may  indirectly  and  remotely  promote 
the  ends  of  the  unlawful  government,  are  without  blame  except 
when  proved  to  have  been  entered  into  with  actual  intent  to 
further  insurrection.  In  this  view  it  was  held  that  the  Con- 
federate currency  was  just  as  legal  as  that  imposed  by  the 
British  on  the  people  of  Castine,  when  that  place  was  held  by 
the  enemy  in  1814,  or  that  imposed  on  the  population  of  Tam- 
pico,  when  held  by  the  United  States  forces  in  1846.  It  is  true 
that  the  domination  in  the  latter  cases  originated  in  lawful 
acts  of  regular  warfare  ;  in  the  former  in  acts  of  insurrection  ; 
but  in  all  and  equally  it  was  the  rule  of  irresistible  force. 

It  is  plain  that  this  decision  was  based  on  expediency.  It 
was  unsupported  by  and  in  some  degree  at  variance  with  the 
general  doctrine  of  the  turpitude  of  consideration  as  affecting 
the  validity  of  contracts.1     But  it  was  deemed  necessary  to  es- 

1.  Story,  Couflict  of  Laws,  sec.  253. 


l82  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

tablish  the  principle  involved  to  prevent  the  grossest  injustice 
in  reference  to  transactions  of  the  people  throughout  the  Con- 
federacy for  several  years  in  duration.  The  principle,  however, 
embraced  only  transactions  between  man  and  man  in  the  or- 
dinary affairs  of  society,  and  gave  no  protection  to  any  which 
went  directly  to  the  support  of  the  insurgent  government.1 
Therefore  when  one  purchased  of  Confederate  agents  certain 
bales  of  cotton,  in  territory  controlled  by  the  insurgents,  and 
the  purchase  money  went  to  sustain  the  rebellion,  the  buyer 
was  not  permitted  to  recover  the  value  of  the  cotton  from  the 
United  States  under  the  captured  and  abandoned  property  act, 
it  having  been  secured  by  the  forces  of  the  United  States  before 
he  disposed  of  it.2  "That  any  person  owing  allegiance  to  an 
organized  government, ' '  said  the  court,  ' '  can  make  a  contract 
by  which,  for  the  sake  of  gain,  he  contributes  most  substan- 
tially and  knowingly  to  the  vital  necessities  of  a  treasonable 
conspiracy  against  its  existence,  and  then  in  a  court  of  that 
government  base  successfully  his  rights  on  such  a  transaction, 
is  opposed  to  all  that  we  have  learned  of  the  invalidity  of  im- 
moral contracts." 

It  would  seem  that  the  principles  here  evolved  cover  the  case 
of  property  belonging  to  subjects  loyal  to  the  regular  govern- 
ment, yet  who  continue  to  live  under  circumstances  of  greater 
or  less  duress  in  territory  dominated  for  the  time  being  by  the 
revolutionists.  The  question  is  somewhat  complicated,  but  the 
underlying  principle  would  seem  to  be  sufficiently  clear  from 
embarrassment. 

It  has  been  decided,  on  the  one  hand,  that  under  the  laws  of 
war  all  such  residents  are  considered  enemies,  their  property 
hostile  without  regard  to  the  individual  opinions  of  the  persons 
affected  ; '  and  on  the  other  hand,  as  we  have  seen,  that  prop- 
erty of  loyal  citizens  of  loyal  States,  the  property  being  situ- 
ated within  rebel  districts,  could  not  be  purchased  under  the 
Confederate  confiscation  acts  of  the  rebel  government  and  the 
buyer  acquire  valid  title  ;  yet  if  it  be  considered  enemy  prop- 
erty solely  because  of  its  location  in  the  insurrectionary  terri- 
tory, why  should  not  title  pass?  If  for  all  purposes  it  be  truly 
enemy  property  why  can  not  the  enemy  legally  dispose  of  it  ? 
The  conclusion  drawn  from  the  decisions  is  that  it  is  not  re- 

i.  97  U.  S.,  454;  12  Wallace,  347;  20  Wallace,  459,  also  467;    15  Wall., 

448;  19  Wall,  556;  91  U.  S.,  3. 
2.  20  Wallace,  459 ;  17  Wallace,  570.  3.  2  Black,  674  ;  92  U.  S.,  194. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  1 83 

garded  as  enemy  property  for  all  purposes.  The  military 
forces  of  the  regular  government  might  properly  so  regard  it, 
but  in  transactions  affecting  such  property  and  emanating  in 
authority  assumed  by  the  rebel  government,  it  was  permitted 
to  go  still  further  and  inquire  as  to  the  loyalty  of  the  owner  of 
the  property  affected.1 

If,  however,  loyalty  to  the  regular  government  be  the  crite- 
rion by  which  is  to  be  determined  the  voidability  of  transactions 
of  the  rebel  government  regarding  property  situated  within  its 
dominion,  why  should  the  loyal  citizen  whose  unhappy  lot  it 
is  to  live  there,  under  circumstances  of  constraint,  perhaps,  and 
subject  to  the  vindictive  measures  of  the  enemy,  receive  less 
consideration  as  to  rights  of  property  than  he  whose  lot  is 
cast  on  loyal  soil  ?  It  is  true  that  the  Supreme  Court  has  said 
that  it  is  the  duty  of  a  citizen,  in  case  of  civil  war,  who  is  a  resi- 
dent in  the  rebellious  district,  to  leave  it  as  soon  as  practicable 
and  adhere  to  the  regular  established  government.2  Yet  when 
we  consider  the  difficulties  surrounding  one  in  his  position — 
that  to  seek  the  protection  of  the  regular  government  may  be 
an  act  proscribed  by  that  under  which  he  lives  and  which  has 
at  its  disposal  his  property,  his  life,  and  all  those  domestic  re- 
lations on  which  society  is  built,  and  which  it  is  the  policy  of 
all  good  government  to  preserve  inviolate — it  can  not  be 
doubted  but  that  so  far  as  this  is  consistent  with  suc- 
cessful war  measures  great  tenderness  will  ever  be  shown 
by  the  legitimate  government  toward  such  unfortunate  yet 
faithful  citizens,  even  though  they  should  not  brave  the  re- 
sentment of  the  temporary  government  by  attempting  to  leave 
its  domain.  If  their  property  be  seized  and  disposed  of  by  that 
government,  the  purchaser  will  be  charged  with  notice  of  the 
illegality  of  the  sale  should  the  courts  of  the  regular  govern- 
ment subsequently  pass  upon  the  transaction.  This  legal  knowl- 
edge— in  law  moral  turpitude — will  attaint  and  render  void 
the  transactions.  To  him  who  braving  the  frowns  of  rebellion 
has  remained  true  to  his  allegiance,  the  re-established  govern- 
ment says,  "well  done,  good  and  faithful  servant."  Nor  can  it 
be  doubted  that  its  utmost  power  will  be  put  forth  to  save  him 
harmless  in  his  property  from  the  effects  of  malignant  attacks 
of  the  temporarily  dominant  but  now  vanquished  enemy. 

1.  Kuox  v.  Lee,  12  Wallace,  457  ;     Williams  v.  Bruffy,  96  U.  S.,  176,  187. 

2.  The  William  Bagalay,  5  Wallace, 377. 


184  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 


CHAPTER   XI. 

RIGHTS    REGARDING    PUBLIC    PROPERTY. 

We  will  consider,  secondly,  the  rules  governing  the  seizure 
and  appropriation  of  public  property.  And  here  it  may  be 
said  generally,  that  whatever  of  tenderness  is  shown  for  private 
property  under  military  government  does  not  extend  to  that  of 
the  deposed  State.  The  conqueror  seizes  upon  the  possessions 
of  the  State.1 

It  is  the  tendency  of  States  in  all  systems  of  government  to 
treat  the  transfer  of  corporeal  movable  property — what  the  com- 
mon law  calls  chattels — so  far  as  possible  as  giving  the  full 
title  to  the  possessor.  The  simple  rules  of  war  take  the  same 
direction.  The  belligerent  occupant  is  treated  as  acquiring  a 
complete  title  to  all  corporeal  movables  of  the  hostile  State 
which  come  under  his  actual  control.  He  may  by  leaving  them 
behind  him,  and  by  their  coming  back  to  the  possession  of  the 
former  State,  lose  his  title  ;  but  if  he  has  perfected  it  by  actual 
possession  and  the  exercise  of  his  right  of  confiscation  they  are 
his,  and  the  former  State  retakes  them,  if  at  all,  as  a  recapture 
for  its  own  benefit  by  a  new  title.  All  incorporeal  rights  in 
movables  follow  the  fortune  of  the  movables.  They  pass  to  the 
conqueror,  if  they  are  rights,  and  if  they  are  servitudes  or  liens 
the  conqueror  takes  the  things  purged  of  the  servitudes  or 
liens.5 

The  title  to  propertyof  a  vanquished  enemy  State  may  be  con- 
sidered by  capture  as  immediately  divested  from  the  original 
owner  and  transferred  to  the  captor.  This  general  principle  is 
modified  by  the  positive  law  of  nations  regarding  both  that 
which  is  movable  and  what  is  immovable. 

First,  attention  will  be  confined  to  movable  property,  concern- 
ing which  the  rule  is  the  same  as  regards  movable  private  prop- 

i.  Vattel,  book  3,  ch.  13,  sec.  200  ;  Maturing,  p.   182  ;  American  Instruc- 
tions, section  11,  clause  1. 
2.  Dana's  Wheaton,  note  169. 


RIGHTS   REGARDING   PUBLIC    PROPERTY.  1 85 

erty.  Military  occupation,  without  some  special  act  appropri- 
ating it,  does  not  vest  title  in  the  conqueror.  This  is  done  only  by 
taking  measures  to  reduce  the  property  into  his  firm  possession 
and  there  retaining  it  sufficiently  long  to  exercise  fairly  over  it 
the  rights  of  ownership.  Having  passed  into  hostile  possession  if 
alienated  by  its  new  owners,  the  vanquished  State  can  only  re- 
acquire title  through  some  of  the  regular  methods  of  procuring 
property . l  Its  original  claim  has  been  completely  extinguished . 
This  is  not  because  there  is  any  insuperable  difficulty  in  re- 
covering such  property  under  the  right  of  post  liminium.  If 
the  property  be  fully  identified  it  is  as  easy  to  restore  what  is 
movable  as  what  is  immovable.  It  was  the  common  practice 
of  the  ancients  to  do  this.  But  the  difficulty  of  recognizing 
things  of  this  nature  and  the  endless  disputes  that  would  arise 
between  adverse  claimants,  now  that  movable  property  is  al- 
most infinite  in  variety  and  quantity,  have  been  deemed  motives 
of  sufficient  weight  for  the  general  establishment  of  a  contrary 
practice. 

Again,  movables  are  either  warlike  stores — supplies  for  the  sup- 
port of  his  army — or  articles  which  the  enemy  sells  to  replenish 
his  treasury.  When  so  appropriated  neither  private  persons 
nor  the  State  can  rationally  expect  to  recover  them.  The 
most  that  the  former  under  the  best  circumstances  can  hope 
for  is  compensation,  and  this  for  the  latter  is  wholly  inadmiss- 
ible. When  once  movable  property  is  taken  into  hostile  posses- 
sion the  presumption  is  that  it  is  lost  forever  to  the  owner.  It 
is,  therefore,  with  reason  excepted  from  the  right  of  post 
liminium  if  it  be  not  retaken  from  the  enemy  immediately  after 
capture  or  unless  he  has  made  no  effort  to  appropriate  it  ;  in 
which  cases  the  proprietor,  whether  private  person  or  the  State, 
finds  no  difficulty  in  recognizing  nor  is  presumed  to  have 
relinquished  title  to  it.* 

While  the  effect  of  complete  conquest  is  that  the  conqueror 
succeeds  to  the  public  property  of  the  vanquished  State  of  what- 
ever character,  whether  movable  or  immovable,  corporeal  or  in- 
corporeal, lying  in  possession  or  in  right  of  action,  the  rights 

1.  Vattel,  bk.  3,  ch.  13,  sec.  196. 

2.  Vattel,  bk.  3,   ch.   14,  sec.   209  ;    Halleck,  ch.  19,    sec.  7  ;    Manual,  p. 

310,  et  seq. 


180  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

which  follow  military  occupation  do  not  extend  so  far  as  this  ; 
but  to  the  extent  that  the  temporarily  dominant  power  can  re- 
duce any  species  of  property  into  its  possession  absolutely,  the 
rule  is  equally  applicable.1  Hence  the  commander  may  com- 
pel private  citizens  or  corporations  who  receive  the  benefit  of 
military  protection  to  pay  debts  actually  due  to  the  deposed 
sovereignty  into  the  coffers  of  the  conqueror,2  and  a  receipt  for 
the  same  would  be  an  acquittance  of  the  debt  ;  the  debtor 
would  not  have  to  pay  it  again  to  the  ancient  creditor  when  he 
returns  to  power.3  This  is  a  relaxation  from  the  strict  rule  of 
law,  for  a  money  debt  being  payable  in  kind  the  debtor  is  not 
strictly  released  by  any  act  or  casualty  that  does  not  exhaust 
the  genus  or  kind.4  To  obtain  the  benefit  of  this  modification 
in  the  debtor's  favor  it  is  requisite  that  the  amount  be  actually 
due.  Moreover  the  debtor  must  be  placed  under  duress  by  the 
military  authorities  established  over  him  and  so  compelled  to 
pay  the  debt  ;  therefore,  if  he  be  not  resident  in  the  territory  oc- 
cupied, or  without  compulsion  should  pay  it  nevertheless  to  the 
conqueror,  in  neither  case  would  the  original  obligation  be 
cancelled.  And  there  must  be  actual  payment.  Acquittance 
without  payment  will  not  avail.  If  to  avoid  forcible  levy  the 
debtor  compromises  or  avails  himself  of  a  general  proviso  in  the 
order  for  collection,  and  the  transaction  be  bona  fide  on  his 
part  under  a  pressure  brought  to  bear  by  the  dominant  authori- 
ties, he  will  be  credited  with  so  much  of  the  indebetedness  as 
he  thus  actually  liquidates.  It  is  a  defense  to  a  second  demand 
to  the  extent  of  the  coercion  and  actual  payment. 

"All  rights  of  military  occupation,"  says  Halleck,  "arise 
from  actual  possession,  and  not  from  constructive  conquests  ; 
they  are  de  facto  and  not  de  jure  rights.  Hence  by  a  conquest 
of  a  part  of  a  country  the  government  of  that  country  or  the 
State  is  not  in  the  possession  of  the  conqueror,  and  he  therefore 
can  not  claim  the  incorporeal  rights  which  attach  to  the  whole 
country  as  a  State.  But  by  the  military  possession  of  a  part 
he  will  acquire  the  same  claim  to  the  incorporeal  rights  which 
attach  to  that  part  as  he  would  by  the  military  occupation  of 
the  whole  acquire  to  those  which  attach  to  the  whole. 

I.   Manning,  pp.  i82-'3.  2.   Bluntschli,  I,  sec  149. 

3.  Woolsey,  section  153.  4.  96  U.  S.,  187  ;  Wheaton,  Dana's  note,  169. 


RIGHTS    REGARDING    PUBLIC    PROPERTY.  187 

We  must  also  distinguish  with  respect  to  the  situations  of 
the  debts,  or  rather  the  localities  of  the  debtors  from  whom  they 
are  owing,  whether  in  the  conquered  country,  in  that  of  the 
conqueror  or  in  that  of  a  neutral.  If  living  in  the  conquered 
country  or  in  that  of  the  conqueror,  there  is  no  doubt  but  that 
the  conqueror  may,  by  the  rights  of  military  occupation,  enforce 
the  collection  of  debts  actually  due  to  the  displaced  govern- 
ment, for  the  de  facto  government  has  in  this  respect  all  the 
powers  of  that  which  preceded  it.  But  if  situated  in  a  neutral 
State,  the  power  of  the  conqueror  being  derived  from  force 
alone,  does  not  reach  them,  and  he  can  not  enforce  payment. 
It  rests  with  the  neutral  to  decide  whether  he  will  or  will  not 
recognize  the  demand  as  a  legal  one,  or  in  other  words,  whether 
he  will  regard  the  government  of  military  occupation  as  suffi- 
ciently permanent  to  be  entitled  to  the  rights  of  the  original 
creditor.  He  owes  the  debt,  and  the  only  question  with  him  is 
who  is  entitled  to  receive  it.  In  deciding  this  question  he  will 
necessarily  be  determined  by  the  particular  circumstances  of  the 
case,  and  will  probably  delay  his  action  until  all  serious  doubts 
are  removed."  '  The  debtor  pays  under  such  circumstances  at 
his  peril.  Confessedly  he  is  not  subject  to  coercion,  being 
domiciled  in  a  neutral  State.  He,  therefore,  can  not  plead 
overpowering  force  to  justify  his  conduct.  To  secure  credit  for 
payment  from  the  original  creditor,  should  the  State  be  restored 
to  power,  the  neutral  must  show  that  the  constitutional  law  of 
the  State  recognized  the  payment  as  valid  ;  in  other  words,  that 
it  was  made  in  good  faith  to  the  de  facto  power  authorized  by  the 
fundamental  law  to  receive  it.  And  although  such  payments 
may  be  justified,  still  nothing  can  divest  them  of  the  appearance 
of  an  unfriendly  if  not  a  hostile  act.  The  burden  of  proof  to 
show  that  the  payment  was  bona  fide  and  in  accordance  with 
law  rests  upon  the  neutral  debtor. 

We  have  seen  that  the  purchase  by  a  neutral  of  immovable 
enemy  property  confiscated  by  a  military  occupant  is  liable  to 
be  treated  as  a  hostile  act  by  the  temporarily  vanquished  State ; 
and  this  for  the  reason  that  it  directly  furnishes  the  conqueror 
with  the  means  of  prosecuting  hostilities.  So  does  the  pay- 
ment of  debts  due  the  deposed  State  furnish  the  opposite  party 


1.   Chap.  32,  sec.  27. 


1 38  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

such  means,  and  reason  will  seldom  distinguish  between  the 
cases  ;  both  are  unfriendly  acts  on  the  part  of  the  neutral,  and 
may  well  be  considered  hostile  by  the  State  whose  interests  are 
thereby  prejudiced.  This  being  so,  should  the  vanquished 
State  be  again  restored  to  power,  she  will  of  course  exhaust 
every  resource  to  compel  a  repayment  of  the  debt.  The  prudent 
course  for  the  neutral  debtor  of  the  deposed  government  to 
pursue  is  to  abide  the  final  results  of  the  struggle,  making 
payment  to  whoever  retains  the  sovereignty. 

The  principle  here  involved  is  well  illustrated  in  the  case  of 
the  electorate  of  Hesse  Cassel  which  grew  out  of  Napoleon's 
wars.1  After  Jena,  Napoleon  held  that  little  State  about  a  year 
under  military  government,  and  then  incorporated  it  into  the 
Kingdom  of  Westphalia,  which  was  recognized  by  the  treaties 
of  Tilsit  and  Schonbrunn  and  the  public  law  of  Europe  as  a 
sovereignty  for  several  years.  The  elector  was  restored  to  his 
throne  by  the  treaty  of  Vienna.  While  Hesse  Cassel  formed 
part  of  the  Kingdom  of  Westphalia,  Count  Von  Hahn  of  the 
Duchy  of  Mecklenburg,  among  many  other  State  debtors,  com- 
pounded with  the  King  of  Westphalia  for  the  payment  of  a 
debt  owing  to  the  electorate  at  the  time  of  its  absorption.  The 
elector  carried  away  with  him  and  retained  in  his  possession 
the  instruments  containing  the  written  acknowledgments  of 
the  debt.  Nevertheless,  every  formality  of  legal  payment  was 
complied  with,  and  the  Duchy  of  Mecklenburg  declared  the 
mortgage  upon  the  count's  estate,  given  to  secure  the  debt,  to 
be  cancelled  and  void.  After  the  count's  death  and  the 
elector's  restoration  the  latter  instituted  proceedings  as  a 
creditor  against  the  estate.  After  passing  before  several 
tribunals,  the  claim  was  finally  rejected  on  the  ground  that  the 
conquest  of  the  country  had  been  complete,  and  that  the  return 
of  the  elector,  after  having  been  ousted  from  his  dominions  for 
eight  years,  could  not  be  considered  a  continuation  of  his 
former  government.  In  the  course  of  their  opinions,  the  learned 
jurists  who  passed  upon  the  question  made  a  broad  distinction 
between  the  acts  of  a  transient  conqueror  under  military 
government,  and  those  of  one  whose  rights  and  titles  had  been 
ratified  by  the   public   acts   of  the  State   and   recognized   in 

I.  Cobbett,  p.  153,  quoting  Phil.  Int.  Law,  pt.  12,  ch.  6. 


RIGHTS    REGARDING   PUBLIC    PROPERTY.  1 89 

treaties  with  foreign  powers.  If  the  case  in  point  were  con- 
sidered as  coming  under  the  former  category,  it  was  held  that 
the  elector  could  recover  that  part  of  the  debt  which  the  count 
had  not  actually  paid  in  the  compromise  he  had  effected  with 
the  King  of  Westphalia  ;  but,  considering  the  conquest  as  per- 
manent, which  view  ultimately  prevailed,  the  circumstances  of 
the  transaction  could  not  be  inquired  into  by  the  restored  sover- 
eign. Nor  was  importance  attached  to  the  fact  that  the  elector 
retained  possession  of  the  documents  evidencing  the  debt. 

The  general  rule  is  that  when  military  government  disap- 
pears the  rights  of  the  original  State  and  its  subjects  revert. 

It  is  possible,  however,  as  in  the  case  just  cited,  that  a  gov- 
ernment based  on  the  military  power  may  be  established  with 
some  degree  of  permanency.  If,  after  the  lapse  of  years,  the 
original  State  is  restored,  the  question  comes  up,  what  efficacy 
is  to  be  given  to  the  acts  of  the  temporary  government  ?  The 
authorities  seem  agreed  upon  these  points  :  (1)  Changes  in  the 
original  Constitution  become  inoperative.  (2)  Ancient  laws 
and  administrative  institutions  are  re-established.  (3)  Private 
rights  acquired  stand.  (4)  Dispositions  of  State  property 
made  continue  binding.  (5 )  The  restored  State  ought  not  to 
make  retrospective  use  of  its  authority. 

The  question  whether  property  of  the  vanquished  State,  the 
possession  or  destruction  of  which  can  have  no  influence  011  the 
result  of  the  conquest,  properly  may  be  either  appropriated  or 
destroyed,  has  received  elaborate  discussion.  On  principle  it 
would  seem  that  it  is  not.  For  although  ancient  practices  were 
otherwise  the  modern  rule  is  that  no  force  is  lawful  except  so 
far  as  it  is  necessary.  And  in  its  application  to  property  the  limit 
of  the  rule  seems  to  be  the  securing  indemnity  for  present  ex- 
penditure, obtaining  the  means  of  prosecuting  hostilities,  and 
depriving  the  enemy  of  whatever  will  enable  him  to  maintain 
the  war.1  Hence,  by  the  modern  usage  of  nations,  temples  of 
religion,  public  edifices  devoted  to  civil  purposes  only,  monu- 
ments of  art  and  repositories  of  science  are  exempted  from  the 
general  operations  of  war.2  When  Frederick  the  Great  took 
possession  of  Dresden  in  1756  he  respected  the  valuable  picture 

1.  Wheaton,  sections  343,  346  ;  Vattel,  ch.  9,  sec.  161. 

2.  American  Instructions,  sec.  2,  clauses  4,  5  ;  Bluntschli,  I,  sec.  134. 


190  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

gallery,  cabinets,  and  museums  of  that  capital  as  not  falling 
within  the  rights  of  a  conqueror.  In  the  case  of  the  Marquis 
de  Somereules  (Stewart's  Vice  Admiralty,  Rep.  482)  the  en- 
lightened judge  of  the  vice-admiralty  court  at  Halifax  restored 
to  the  academy  of  arts  in  Philadelphia  paintings  and  prints 
captured  by  a  British  vessel  in  the  war  of  18 12  on  their  passage 
to  the  United  States,  and  he  did  it  "in  conformity  to  the  law 
of  nations,  as  practiced  by  all  civilized  countries,  because  the 
arts  and  sciences  are  admitted  to  form  an  exception  to  the 
severe  rights  of  warfare. ' ' x 

The  occurrences  which  in  modern  times  have  given  rise  to 
the  fullest  examination  of  this  subject  followed  the  French 
revolution.  After  his  conquest  of  Italy,  in  1796,  Bonaparte 
compelled  the  Italian  states  and  princes,  including  the 
pope,  to  surrender  their  choicest  pictures  and  works  of  art  to 
be  transported  to  Paris.  Subsequently  the  same  line  of  con- 
duct marked  the  career  of  that  conqueror,  as  one  after  another 
most  of  the  cities  and  capitals  of  Europe  were  occupied  by  his 
armies.  There  is  no  doubt  but  that  these  transactions  might 
have  have  been  legitimate.2  It  was  entirely  competent  for  the 
owners  of  works  of  art  to  dispose  of  them  by  treaty  stipulations 
to  the  conqueror,  and  in  this  manner  it  was  claimed  most  of  those 
were  obtained  which  by  the  means  described  were  made  to  grace 
the  famous  museum  of  the  Louvre.  Nor  would  a  subsequent 
claim  that  the  war  was  unprincipled,  which  led  to  such  aliena- 
tions, in  the  least  affect  their  sufficiency  and  validity,  for  this 
would  put  an  end  to  all  certainty  as  to  the  results  of  the  armed 
conflicts  of  nations,  as  no  vanquished  party  ever  regards  the 
cause  of  the  enemy  as  other  than  unrighteous.  But  in  fact 
very  many  art  treasures  which  were  thus  carried  to  Paris  from 
other  countries  were  taken  possession  of  under  no  other  pre- 
text than  as  trophies  of  war.  At  the  time  these  transactions 
were  generally  denounced  as  being  beyond  the  pale  of  civilized 
warfare,  particularly  by  English  writers  with  whom,  however, 
as  a  general  rule,  national  prejudice  may  have  had  more  in- 
fluence than  considerations  of  enlightened  policy  ;  yet,  without 
entering  into  the  question  of  motives,  their  position  has  had 

1.  Kent,  1,  93  (a).  2.  American  Instructions,  sec.  2,  clause  6. 


RIGHTS    REGARDING    PUBIJC    PROPERTY.  igi 

the  support  not  only  of  jurists  and  publicists  but  military  men, 
and  has  generally  commended  itself  to  the  better  reason  of 
mankind. 

These  views  are  generally  in  accord  with  the  provisions  of 
the  instructions  for  the  United  States  forces  in  the  field.  It 
was  here  laid  down  that  classical  works  of  art,  libraries,  scien- 
tific collections  or  precious  instruments,  such  as  astronomical 
telescopes  as  well  as  hospitals,  must  be  secured  against  all 
avoidable  injury,  even  when  the}'  are  contained  in  fortified 
places  whilst  besieged  or  bombarded. 

But  it  was  likewise  provided  that  if  these  rare  and  valuable 
instruments  or  collections  can  be  removed  without  injury,  the 
conqueror  may  order  them  to  be  seized  and  removed  for  the 
benefit  of  the  conquering  State,  the  ultimate  ownership  to  be 
settled  by  the  treaty  of  peace.  In  no  case,  however,  were  they 
to  be  privately  appropriated  or  wantonly  destroyed  or  injured.1 

The  right  of  appropriation  is  here  broadly  sustained.  It  is  a 
right  that  may  be  called  perfect,  yet  general  sentiment  is 
against  asserting  it,  and  it  unmistakably  is  falling  into  dis- 
favor. The  modern  drift  of  thought  appears  to  be  in  favor  of 
permitting  works  of  genius  to  remain  to  grace  the  place  that 
gave  them  birth. 

The  invasion  of  France  by  the  allied  powers  in  1815  was  fol- 
lowed by  the  forcible  restitution  of  the  pictures,  statues,  and 
other  monuments  of  art  collected  from  different  conquered 
countries  in  the  Louvre  museum.  This  the  congress  of  allied 
powers,  assembled  in  Paris,  was  solicited  to  do  by  those  States 
which  had  been  despoiled.  Upon  what  principles,  it  was  asked, 
could  France  expect  to  sit  down  with  the  same  extent  of  pos- 
sessions which  she  held  before  the  revolution,  and  desire  at  the 
same  time  to  retain  the  ornamental  spoils  of  all  other  countries  ? 
Was  there  any  possible  doubt  as  to  the  issue  of  the  contest,  or 
of  the  power  of  the  allies  to  effectuate  what  justice  and  policy 
required  ?  If  not,  upon  what  principles  could  they  deprive 
France  of  her  late  territorial  acquisitions  and  preserve  to  her  the 
spoliations  consisting  of  objects  of  art,  appertaining  to  those  ter- 
ritories, which  all  modern  conquerors  had  invariably  respected  as 
inseparable  from  the  country  to  which  they  belonged  ? 2     These 

1.  Section  2,  clauses  5,  6. 

2.  Wheaton,  sec.  353  ;  Twiss,  Law  of  Nations,  p.  130. 


I92  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

or  similar  reasons  prevailed  with  the  allies  ;  yet  even  in  England 
the  measure  was  not  universally  approved.  Sir  Samuel  Romilly, 
speaking  in  the  House  of  Commons,  said  that  he  was  by  no 
means  satisfied  of  the  justice  of  the  measure  ;  that  it  was  not 
true  that  all  these  trophies  had  been  carried  away  as  spoils  of 
war ;  the  most  valuable  of  them  had  become  the  property  of 
France  by  treaty  stipulations  ;  that  it  was  no  answer  to  say  that 
those  treaties  had  been  made  under  duress,  for  there  would  be 
an  end  of  all  faith  between  nations  if  treaties  were  to  be  dis- 
regarded on  this  plea  ;  and  moreover,  that  the  very  States 
which  were  clamoring  for  a  restoration  of  these  articles  were 
those  which  abetted  France  in  waging  these  so-called  unjust 
wars. 

The  rule  ' '  might  makes  right ' '  is  that  which  often  controls 
in  warfare.  Softened  in  application  it  has  been  indeed  through 
the  refining  influences  of  civilization,  but  its  integrity  is  not 
sensibly  impaired.  The  question  what  is  allowable  under  the 
rules  of  war  generally  resolves  itself  into  one  of  power.  From 
the  exercise  of  that  power  there  is  no  sufficient  reason  for  the 
assertion  that  paintings,  statuary,  and  other  art  treasures  be- 
longing to  the  enemy  State  will  hereafter  more  than  heretofore 
invariably  be  held  inviolate.  Still,  the  writings  of  publicists, 
the  decisions  of  jurists,  and  the  general  practices  of  successful 
commanders  as  a  rule  being  in  derogation  of  such  right,  it  is 
certainly  falling  into  disrepute,  the  precursor,  let  us  hope,  of 
final  abandonment  of  all  claim  to  its  being  recognized  as  a 
right  of  war.1 

With  regard  to  the  useless  destruction  of  such  articles  there 
has  been  in  modern  times  a  decided  preponderance  of  public 
opinion  in  a  direction  adverse  to  such  practices.  Structures  of 
a  civil  character,  public  edifices  devoted  to  civil  purposes  only, 
temples  of  religion,  repositories  of  science,  equally  with  monu- 
ments of  art,  are  exempt  from  the  devastations  of  war.  In  en- 
tering the  City  of  Mexico  as  a  conqueror  in  1847,  General 
Scott  issued  an  order  announcing  that  the  capital,  its  churches 
and  religious  worship,  its  convents  and  monasteries,  its  inhabit- 
ants and  property,  were  placed  under  the  special  safeguard  of 
the  faith  and  honor  of  the  American  Army.1    This  but  con- 

1.  Manning,  p.  188  ;  Bluntschli,  I,  sec.  141 ;  Twiss,  Law  of  Nations,  p.  129. 

2.  Scott's  Autobiography,  p.  545. 


RIGHTS   REGARDING   PUBLIC   PROPERTY.  193 

firmed  his  previous  promises  to  the  Mexicans  that  his  arm}- 
would  respect  private  property  of  every  description,  and  the 
property  of  the  Mexican  church. l 

This  conduct  was  in  striking  contrast  to  that  of  the  British 
commander  who,  after  the  capture  of  Washington  in  18 14,  de- 
stroyed the  public  buildings  with  their  contents.  This,  as  Sir 
James  Mackintosh  well  said,  was  an  act  which  gave  the  hearts 
of  the  American  people  to  every  enemy  who  might  rise  against 
England.  It  exasperated  the  people  without  weakening  the 
government  or  strengthening  the  perpetrators.  It  was  an  attack 
not  against  the  strength  or  resources  of  the  State,  but  against 
the  national  honor  and  public  affections  of  the  people.  After 
twenty-four  years  of  the  fiercest  warfare,  in  which  every  great 
capital  of  continental  Europe  had  been  spared,  almost  respected 
by  enemies,  it  was  reserved  for  England  to  violate  all  that  de- 
cent courtesy  toward  the  seats  of  national  dignity  which  in 
the  midst  of  enmity  manifest  the  respect  of  nations  for  each 
other,  by  an  expedition  deliberate^  and  principally  directed 
against  palaces  of  the  government,  halls  of  legislation,  tribunals 
of  justice,  repositories  of  the  muniments  of  property  and  of  the 
records  of  history,  objects  among  civilized  nations  exempt 
from  the  ravages  of  war  and  secured  as  far  as  possible  even 
from  its  accidental  operation,  because  the}'  contribute  nothing 
to  the  means  of  hostility,  but  are  consecrated  to  the  purposes 
of  peace  and  minister  to  the  common  and  perpetual  interests  of 
all  human  society.2 

It  was  attempted  to  justify  this  conduct  on  the  principle  of 
retaliation.  It  had  happened  that  at  St.  David's,  Upper  Canada, 
some  stragglers  from  the  American  Army  had  wantonly  burned 
some  buildings,  for  not  preventing  which,  however,  the  Ameri- 
can commander  there  had  been  summarily  dismissed  ;  a  similar 
occurrence  had  happened  at  Long  Point  in  the  same  province, 
which  was  disavowed  by  the  American  government  and  the 
conduct  of  the  commander  subjected  to  a  military  inquiry. 

Finally,  the  village  of  Newark,  adjoining  Fort  George,  was 
destroyed  for  what  appeared  to  be  military  reasons,  and  sanc- 
tioned on  that  ground  by  the  American  officers  ;  still  this,  too, 

1.   Mansfield's    Mexican    War.    p.    212  ;     American    Instructions,    sec.    2, 
clauses  1,  4.  2.   Wheaton,  sec.  351. 


194  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

was  disapproved  by  the  government,  which  announced  its  pur- 
pose to  wage  war  in  a  manner  most  consonant  to  the  principles 
of  humanity  and  to  those  friendly  relations  which  it  was  de- 
sirable to  preserve  between  the  two  nations  after  the  restoration 
of  peace.  It  was  under  color  of  retaliation  for  these  acts  that 
the  British  government  set  on  foot  a  crusade  against  all  private 
property  and  towns  situated  on  or  adjacent  to  Chesapeake  Bay, 
culminating  in  the  destruction  of  public  buildings  at  the  capi- 
tal. Referring  to  this  claim  the  distinguished  statesman  before 
quoted  remarked  that  it  seemed  an  aggravation  of  this  atro- 
cious measure  that  ministers  had  endeavored  to  justify  the  de- 
struction of  a  distinguished  capital  as  a  retaliation  for  some 
violences  of  inferior  American  officers  unauthorized  and  disa- 
vowed by  their  government.  To  make  such  retaliation  just 
there  must  always  be  some  proof  of  the  outrage  ;  in  general, 
also,  sufficient  evidence  that  the  adverse  government  had  re- 
fused to  make  due  reparation  for  it ;  and,  lastly,  some  propor- 
tion of  the  punishment  to  the  offence.  Here  there  was  no 
proof  of  refusal  to  repair,  and  demonstration  of  the  excessive  and 
monstrous  iniquity  of  what  was  falsely  called  retaliation.  The 
destruction  of  the  capitol,  the  President's  house,  and  other 
public  buildings  could  not  but  be  considered  by  the  whole 
world  as  a  most  unjustifiable  departure  from  the  laws  of  civil- 
ized warfare.1 

The  spectacle  of  the  national  capital  being  captured,  pillaged, 
and  burned  by  a  small  force  of  the  enemy  causes  the  blush  of 
shame  and  indignation  to  mount  to  the  cheek  of  every  patriotic 
American.  Yet  the  incident  is  not  without  its  important  les- 
sons. Errors  of  the  past  can  not  be  remedied,  but  something 
may  be  gleaned  therefrom  to  guide  us  in  the  future.  To  con- 
tent ourselves  with  inveighing  against  the  enemy's  barbarity  is 
the  height  of  folly  ;  it  will  only  excite  contempt,  and,  should 
occasion  again  offer,  invite  a  repetition  of  the  atrocities.  And 
first  it  is  seen  how  easy  it  is  for  the  thoughtless  or  unauthor- 
ized conduct  of  even  inferior  officers  to  lead  to  consequences  of 
gravest  moment,  and  the  necessity  at  all  times  of  maintaining 
a  strict  military  discipline  and  restraining  destruction  of  prop- 
erty to  what  is  strictly  justifiable  under  the  laws  of  war.     No 

I.  Hansard's  Parliamentary  Debates,  33,  5 26 -'7  ;  Wheatou,  sec.  351. 


RIGHTS    REGARDING    PUBLIC    PROPERTY.  195 

doubt  but  that  the  British  government  in  carrying  the  ravages 
of  their  armed  forces  against  non-combatants,  private  property, 
and  public  buildings  devoted  to  civil  purposes,  gave  vent  to  a 
consuming  and  deep-seated  hatred  of  the  American  people  ; 
but  it  should  not  be  forgotten  that  the  illy-considered  conduct  of 
inferior  officers  in  seemingly  unnecessarily  burning  property  on 
enemy  territory  furnished  the  specious  pretext  for  this  unjusti- 
fiable conduct.  Nothing  more  certainly  stirs  up  an  implacable 
spirit  of  revenge  than  inexcusable  destruction  of  property  in  a 
country  temporarily  occupied  by  the  enemy.  Commanders 
should  remember  this  because  immediate  and  temporary  sur- 
roundings may  lead  to  a  false  feeling  of  security.  The  oc- 
cupied territory  being  prostrated  no  resistance  can  be  offered  to 
these  ill-judged  measures.  The  thirst  for  vengeance,  however, 
is  not  quenched,  and,  should  opportunity  anywhere  offer,  may 
be  slaked  by  scenes  of  desolation  limited  only  by  the  destruc- 
tive powers  of  the  enemy.  Another  lesson  to  be  learned  from 
the  capture  and  desecration  of  the  national  capital  is  the  grave, 
not  to  say  unpardonable,  error  of  permitting  that  city  to  be  so 
poorly  defended  that  its  seizure  under  circumstances  similar  to 
those  formerly  attending  that  event  is  possible.  And  yet, 
should  war  break  out  with  an  enterprising,  well-equipped, 
thoroughly-trained  enemy,  backed  by  a  powerful  navy,  what 
is  to  prevent  a  repetition  of  the  humiliating  spectacle  ?  Does 
not  the  country  owe  it  to  itself  to  render  that  city — built  up 
and  beautified  with  every  care  and  lavish  expenditure  of  treas- 
ure, the  repository  of  so  much  that  is  valuable  and  interesting 
in  the  realms  of  politics,  science,  literature,  history,  and  art — 
secure  from  the  successful  attack  of  a  predatory  column  of  the 
enemy  ? 

While  wanton  destruction  of  property  of  the  classes  men- 
tioned is  thus  reprobated,  still  destruction  possibly  may  be 
fully  justified.  The  milder  is  the  more  pleasing  rule  ;  but  if  it 
became  necessary  to  destroy  works  of  art,  or  public  buildings 
devoted  to  civil  purposes,  or  others  of  the  classes  usually  ex- 
empted from  such  fate,  in  order  successfully  to  carry  on  the 
operations  of  war,  to  advance  the  works  in  a  siege,  or  stay  the 
advance  of  the  enemy,  the  right  to  take  the  step  can  not  be  contro- 
verted.1   The  sovereign  of  the  country  or  his  general  makes  no 

I.  97  U.  S.,  pp.  606,  622  ;   American  Instructions,  sec.  2,  clause  5. 


I96  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

scruple  to  destroy  them  under  such  circumstances.  The  gov- 
ernor of  a  besieged  town  sets  fire  to  the  suburbs  that  they  may 
not  afford  a  lodgment  to  the  besiegers.  Nobody  blames  the 
commander  who  lays  waste  gardens,  vineyards,  or  orchards 
for  the  purpose  of  encamping  on  the  ground,  and  throwing  up 
an  entrenchment.  If  any  beautiful  production  of  art  be  thereby 
destroyed,  it  is  an  accident,  an  unhappy  consequence  of  the 
war  ;  and  the  general  will  not  be  blamed  except  in  those  cases 
where  without  sacrificing  any  military  advantage  he  might 
have  pitched  his  camp  elsewhere  without  the  smallest  incon- 
venience to  himself.  So  in  the  bombardment  of  places  it  is 
difficult  to  spare  any  particular  structure.  Ever}'  siege  gives 
evidence  of  this.  To  destroy  a  city  with  all  it  contains  is  in- 
deed an  extreme  measure,  not  to  be  resorted  to  except  for  co- 
gent reasons,  yet  it  is  perfectly  justifiable  when  no  other 
method  suffices  to  reduce  the  place  and  this  reduction  becomes 
essential  to  the  successful  prosecution  of  the  war.1  These  are 
elementary  principles.  The  enemy  is  not  permitted  to  gain  an 
advantage  because  to  prevent  it  the  destruction  of  objects  of 
art  or  palaces  of  learning  may  thereby  ensue.  The  wise  com- 
mander inquires  only  what  is  necessary  to  attain  success.  All 
other  considerations  give  way  to  this.  The  responsibility  of 
acting  rests  upon  him,  and  he  can  not  divest  himself  of  it. 
His  authority  is  commensurate  with  his  obligations.  The  only 
restriction  placed  upon  him  is  that  he  will  not  permit  such 
destruction  or  demolition  of  property  unless  it  be  necessary. 

The  commander  in  territory  militarily  occupied  should  pre- 
serve from  destruction  or  hostile  conversion  State  papers,  ju- 
dicial and  legal  documents,  and  indeed  all  papers  necessary  or 
convenient  either  in  the  affairs  of  government  or  securing  in- 
dividuals in  their  titles  to  property.  Historical  records  should 
have  equal  protection  and  immunity.  The  commander  while 
he  is  in  possession  of  a  town  or  district  has  a  right  to  hold  such 
papers  and  records  and  to  use  them  in  carrying  on  his  govern- 
ment ;  in  fact  it  is  his  duty  to  do  this  ;  but  when  the  tempora- 
rily deposed  State  returns  to  possession,  either  during  the  war 
or  as  a  condition  of  peace,  such  papers  should  be  returned  to 
the  authorities  from  whom  they  were  taken.2    They  adhere  to 

1.  Bluntschli,  Laws  of  War,  I,  section  7. 

2.  Twiss,  Law  of  Nations,  p.  128;   Manning,  p.  188. 


RIGHTS    REGARDING   PUBLIC    PROPERTY.  1 97 

the  government  of  the  place  or  territory  to  which  they  belong, 
and  should  always  be  transferred  with  it.  To  destroy  or  with- 
hold them  would  be  an  act  of  vandalism.  The  reason  of  this 
rule  is  manifest.  Their  destruction  would  not  operate  to  pro- 
mote in  any  degree  the  object  of  the  war,  but  on  the  contrary 
would  produce  an  animosity  and  irritation  which  would  extend 
beyond  the  war.  It  would  inflict  an  unnecessary  injury  upon 
the  conquered  without  any  benefit  to  the  conqueror.  Such 
archives,  papers,  and  records  often  constitute  the  basis  and 
evidence  of  private  property,  and  to  make  way  with  them 
would  be  to  inflict  useless  hardships  ;  in  other  words,  it  would 
be  an  injury  done  in  war  beyond  what  necessity  requires,  and, 
therefore,  illegal,  impolitic,  and  cruel.  The  same  reasons  apply 
to  carrying  them  off  and  withholding  them  from  their  proper 
owners  and  legitimate  use.1 

Second,  with  regard  to  immovable  property  of  the  deposed 
State  :  Here  no  rights  accrue  to  the  belligerent  occupier  be- 
yond what  he  can  gather  to  himself  by  superior  force."  This 
rule  limits  his  proprietary  rights.  What  he  can  reduce  into 
his  possession  and  retain  is  his  own.  But  as  his  occupation  is 
subject  to  the  chances  of  war,  so  is  his  title  to  what  he  can  not 
remove.3  He  therefore  acquires  no  complete,  valid,  and  inde- 
feasible title  to  such  property  by  virtue  of  military  occupancy 
with  full  power  of  alienation. 

The  right  of  the  commander,  subject  to  superior  authority 
and  the  policy  adopted  by  his  government,  to  alienate  immov- 
able property  of  the  enemy  State  is  not  denied.  The  necessity 
of  self-preservation  and  the  right  to  punish  an  enemy  and  to 
deprive  him  of  the  means  of  injuring  us  by  converting  those 
means  to  our  own  use  against  him,  constitute  the  foundation 
on  which  rests  the  belligerent  right  to  enemy  property  of  any 
kind.  Between  movable  and  immovable  property  reason  makes 
no  distinction  in  this  regard.  The  right  to  deprive  the  enemy 
of  all  property  which  adds  to  our  warlike  resources  and  dimin- 
ishes his  is  perfect.  It  follows  that  by  the  just  rules  of  war 
the  conqueror  has  the  same  right  to  use  or  alienate  the  public 
domain  of  the  conquered  or  displaced  government  that  he  has 
to  use  or  alienate  its  movable  property. '    The  title  of  the  alienee, 

i.  Halleck,  ch.  19,  sec.  9.  2.  Twiss,  Law  of  Nations,  p.  126. 

3.  New  Orleans  v.  Steamship  Co.,  20  Wallace,  397. 


I98  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

however,  as  before  pointed  out,  due  to  the  principle  of  post 
liminium,  would  be  very  different  in  the  two  cases. 

The  purchaser  of  immovable  enemy  public  property  takes 
it  at  the  risk  of  being  evicted  by  the  original  owner  should  he 
be  restored  to  his  possessions.  Subjects  of  the  conqueror  pur- 
chase at  the  risk  of  ouster  only  in  case  of  such  restoration  ;  while 
on  the  part  of  subjects  of  the  temporarily  displaced  government, 
such  conduct  is  likely  to  be  regarded  by  their  permanent  sov- 
ereign as  recreancy  to  their  true  allegiance  ;  and  neutrals  are 
liable  to  be  considered  as  thereby  making  themselves  parties  to 
the  war,  and  if  they  endeavor  to  retain  their  purchases  would 
find  themselves  involved  in  it.  Thus  Frederick  I.,  King  of 
Prussia,  cast  his  fortunes  with  the  enemies  of  Sweden  when  he 
received  Stettin  from  the  hands  of  the  King  of  Poland  and  the 
Czar  under  the  title  of  sequestration. 

No  rents,  taxes,  or  other  revenues  derivable  from  property  of 
any  description  within  the  occupied  territory  can  be  claimed  by 
the  dispossessed  government  as  its  due,  nor  should  they  ever 
be  remitted  by  those  charged  with  collecting  the  same  for  its 
support.  To  do  this  would  be  a  breach  of  that  temporary  al- 
legiance due  from  those  who  accept  the  protection  of  the  mili- 
tary government  which  would  subject  them  to  severe  punish- 
ment. All  such  revenues  belong  of  right  to  the  conqueror. 
He  may  demand  and  receive  their  payment  to  himself.  He 
may  use  them  as  to  him  seems  best,  and  generally  a  consider- 
able portion  will  be  expended  in  maintaining  the  machinery  of 
local  government,  which,  be  it  civil  or  otherwise,  is  maintained 
under  military  control.  These  rents  and  taxes  are  a  part  of  the 
spoils  of  war,  and  the  people  of  the  captured  province  or  town 
can  no  more  pay  them  to  the  vanquished  State  than  they  can 
contribute  funds  or  military  munitions  to  assist  it  to  prosecute 
the  war.2  Those  who  remain  under  military  government  are 
subject  to  the  orders  of  the  conqueror,  and  are  not  for  the  time 
being  subject  to  the  laws  of  the  displaced  State  or  to  its  man- 
dates. Therefore,  any  attempt  of  the  former  government,  now 
ejected  from  its  seat  of  power,  to  make  collections  of  money  or 
other  sinews  of  war  from  a  people  whom  it  no  longer  protects 

1.  Halleck,  ch.  19,  sec.  3. 

2.  American  Instructions,  sec.  2,  cl.  1  ;    92  U.  S.,  in  ;    101  U.  S.,  618. 


RIGHTS    REGARDING    PUBLIC    PROPERTY.  199 

would  be  wholly  unwarranted  and  properly  be  resented  by  them 
as  an  act  of  presumption — mere  brutum  fulmen — to  which, 
even  if  inclined  to  do  so,  they  could  not  consistently  with 
their  own  safety  pay  regard.  Such  were  the  proclamations 
of  various  juntas  during  the  war  in  the  Spanish  Peninsula 
when  the  enemy  had  completely  prostrated  their  powers  of 
successful  resistance,  and  which  had  no  other  result  than  to 
deceive  the  Spanish  people  and  sacrifice  alike  both  them  and 
their  steadfast,  faithful  allies.1 

It  is  true  that  this  has  sometimes  been  denied  and  the  doc- 
trine advanced  that  the  expelled  sovereignty  has  the  right  to 
forbid  its  officials  to  serve  the  invader,  and  order  his  subjects  to 
refuse  obedience,  or  may  excite  insurrection.2  The  mere  ques- 
tion of  the  rights  of  the  vanquished  sovereignty  in  this  behalf 
is  a  theoretical  abstraction  that  can  work  good  to  no  one  and 
harm  to  only  loyal  subjects.  If  they  obey,  the  conqueror,  who 
exercises  the  only  government  that  exists  over  them,  will  apply 
the  proper  disciplinary  measures. 

If  the  deposed  sovereignty  forbade  the  conquered  inhabitants 
to  pay  the  public  revenues  to  the  officials  who  administered 
military  government,  would  attention  be  paid  to  so  unreason- 
able commands  ?  Would  the  conqueror  not  compel  payment  to 
him  ?  When  the  vanquished  State  recovered  its  power  would 
it  compel  the  revenues  to  be  again  collected  and  paid  to  itself? 
Yet  if  it  have  authority  to  command  the  people  to  refuse  obe 
dience  to  the  conqueror  it  may  order  them  not  to  pay  money 
or  contribute  supplies  to  the  latter.  The  position  in  which 
such  a  doctrine  places  the  conquered  people  is  certainly  not  a 
happy  one. 

The  same  principles  lie  at  the  foundation  of  the  right  to  de- 
stroy both  movable  and  immovable  property  of  the  enemy  State. 
As  we  have  a  right  to  deprive  the  enemy  of  his  property  by 
carrying  it  away,  so  we  may  in  some  instances  destroy  that 
which  in  its  nature  is  not  capable  of  transportation.3  The 
country  may  be  wasted  if  it  tends  to  promote  the  ends  of  the 
war.  But  such  measures  are  only  to  be  pursued  with  modera- 
tion and  according  to  the  exigency  of  the  case.     All  damage 

1.  Napier's  Peninsula  War,  bk.  3,  ch.  2. 
2.   Hall,  pp.  44i-'2.  3.  Twiss,  Law  of  Nations,  p.  125. 


200  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

done  to  property  unnecessarily,  every  act  of  hostility  against 
the  enemy  which  does  not  tend  to  secure  the  victory  and  bring 
the  war  to  a  conclusion,  is  unwarranted.  As  with  respect  to 
hostilities  against  the  enemy's  person,  the  laws  of  war  prohibit 
those  measures  which  are  in  themselves  unlawful  and  odious — 
poisoning,  assassinations,  treachery,  the  massacre  of  an  enemy 
who  has  surrendered — so  the  law  now  being  considered  con- 
demns every  act  of  hostility  which  of  its  own  nature,  and  inde- 
pendently of  circumstances,  contributes  nothing  to  the  success 
of  our  arms  and  does  not  increase  our  strength  or  weaken  that 
of  the  enemy  ;  and  on  the  other  hand,  it  permits  or  tolerates 
every  act  which  in  itself  is  naturally  adapted  to  promote  the 
object  of  the  war  without  considering  whether  such  act  of  hos- 
tility was  unnecessary  in  that  particular  instance,  unless  there 
be  the  clearest  evidence  that  an  exception  ought  to  have  been 
made  in  the  case  in  question.1 

The  destruction  of  public  magazines,  foundries,  and  all 
other  warlike  stores  of  the  enemy  when,  in  the  judgment  of 
the  commander,  it  becomes  advisable,  would  be  entirely  justi- 
fiable. It  might  often  happen  that  this  destruction  would  in- 
volve that  of  much  private  as  well  as  public  property,  which 
private  property,  except  for  its  being  accidentally  involved  in 
the  fortune  of  the  other,  should  be  spared  ;  if  that  be  so,  and 
the  latter  be  destroyed,  it  is  one  of  those  fortuitous  circum- 
stances so  common  in  campaigns,  regrettable  to  be  sure,  3-et  for 
which  no  blame  properly  attaches  to  the  commander  ordering 
the  destruction.  All  that  can  be  asked  of  him  is  that  he  will 
take  reasonable  precautions  to  prevent  the  destruction  of  every 
species  of  property  the  existence  or  possession  of  which  can 
have  no  influence  upon  the  issues  of  the  war. 

This  was  illustrated  when,  in  1864,  Atlanta,  Georgia,  was 
partially  destroyed  by  the  Federal  authorities.  That  city  was 
of  vast  importance  both  politically  and  strategically,  and  when 
after  the  campaign  resulting  in  its  capture  the  general  of  the 
Union  Army  decided  to  abandon  it  and  establish  his  base  of 
operations  on  the  seaboard,  it  became  necessary-  to  render  it  as 
little  valuable  to  the  enemy  as  possible.  To  this  end  the  ex- 
tensive railroad  depots  were  levelled  and  burned  and  the  rail- 

I.  Vattel,  bk.  3,  ch.  9,  sec.  173. 


RIGHTS    REGARDING   PUBLIC    PROPERTY.  201 

roads  centering  thereat  were  as  far  as  possible  destroyed.  Some 
of  the  buildings  connected  with  depots  had  been  converted  by 
the  enemy  into  magazines  where  were  stored  quantities  of 
ammunition.  During  the  burning  of  this  property,  which  was 
strictly  warranted  under  the  laws  of  war,  the  conflagration  ex- 
tended to  man}'  buildings  and  much  property  other  than  that 
which  had  been  ordered  to  be  destroyed.1 

But  the  destruction  of  public  property  by  this  army  was  not 
always  accompanied  by  such  results.  Afterwards,  while  the 
troops  were,  pursuant  to  the  plan  adopted  for  a  change  of  base, 
occupying  Milledgeville,  Georgia,  the  arsenal  there  and  its 
contents  were  completely  destroyed,  together  with  such  public 
buildings  as  could  be  easily  converted  to  hostile  uses.  But 
little  or  no  damage  was  done  to  private  property,  even  some 
extensive  mills  being  spared  together  with  several  thousand 
bales  of  cotton,  although  these  might  have  proved  of  great 
service  to  the  enemy,  while  private  property  was  carefully  pre- 
served from  destruction.  The  same  course  was  pursued  by 
General  Wilson  at  Selma,  Alabama.  That  place  was  an  im- 
portant military  depot.  There  were  located  an  arsenal,  a  navy 
3'ard,  nitre  works,  and  extensive  foundries  for  artillery  of  all 
sizes,  shot  and  shell.  When  the  Federal  commander  moved 
on,  leaving  the  city  behind  him,  it  became  necessary  to  destroy 
all  these.  In  doing  so  every  precaution  was  taken  to  prevent 
the  spread  of  fire  ;  a  night  was  selected  when  the  rain  fell  in 
torrents,  and  thus  the  spread  of  the  flames  to  private  and  public 
property  which  was  to  be  spared  was  effectually  prevented. 

It  is  true  that  these  events  did  not  happen  under  military 
government.  In  each  case  the  destruction  was  incident  to  the 
active  prosecution  of  a  war  in  presence  of  the  enemy  when  to 
hold  the  immediate  territory  was  neither  contemplated  nor  de- 
sirable. But  they  occurred  in  enemy  territory  and  well  illus  - 
trate  the  principle  which  should  control  commanders  enforcing 
military  government  when  it  becomes  necessary  to  destroy  the 
property  of  the  deposed  State. 

In  one  important  respect  the  implied  obligations  of  the  con- 
queror who  has  established  military  government  are  very  dif- 
ferent in  regard  to  private  and  public  property.     This  results 

I.  Gen.  Sherman's  MernoirSj  vol.  2,  p.  177. 


202  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

from  the  reciprocal  relations  of  temporary  subject  and  ruler 
subsisting  between  the  people  and  the  conqueror.  If  he  elects 
to  set  up  a  government  over  them  with  the  understanding  that 
the  people  are  to  remain  quietly  at  their  homes,  pursuing  in  so 
far  as  allowable  their  usual  peaceful  vocations,  he  must  see  that 
his  part  of  the  agreement  thus  impliedly  entered  into  shall  be 
faithfully  performed  ;  and  this  embraces  that  measure  of  pro- 
tection to  private  property  which  before  has  been  indicated  as 
due  from  him.  On  the  other  hand,  except  it  be  in  pursuance 
of  treaty  stipulations,  he  is  under  no  obligations  whatever  to 
the  vanquished  State.  He  deals  with  it  at  arm's  length.  He 
has  forcibly  deposed  its  authority.  If  former  officials  continue 
to  perform  their  functions  it  is  because  he  so  wills.  He  there- 
fore unhesitatingly  destroys  the  property  of  the  State  when 
either  policy  or  the  exigencies  of  the  war  may  render  such  a 
course  advisable,  and  of  this  he  alone  is  the  judge.  He  is  re- 
stricted in  his  measures  by  the  laws  of  war  only  ;  the  deposed 
State  has  no  voice  in  the  matter. 

If  it  be  a  civil  war,  policy  may  dictate  a  different  course  on 
the  part  of  the  legitimate  government  towards  both  rebel  sub- 
jects and  their  government,  although  it  is  competent  for  either 
party  to  conduct  the  contest  on  the  same  principles  as  if  waged 
between  independent  States.  When  the  war  attains  sufficient 
magnitude  to  prompt  the  parent  State,  from  considerations  of 
humanity,  to  concede  belligerent  rights  to  the  rebels,  all  prop- 
erty within  the  revolutionary  territory,  as  we  have  before 
pointed  out,  in  the  eye  of  the  law  is  enemy  property.1  It  is  there- 
fore subject  to  the  rules  governing  the  disposition  of  property 
in  hostile  territory.  The  revolutionists  from  the  position  they 
assume  regard  the  legitimate  government  in  no  other  light  than 
an  independent  sovereignty  with  which  they  have  no  connec- 
tion, and  they  deal  with  it  and  its  loyal  subjects  accordingly. 
They  have  established  a  government  of  force,  independent  of 
all  other  governments.  Having  thrown  down  the  gauge  of 
battle  they  abide  the  consequences.  The  legitimate  govern- 
ment is  to  them  a  hostile  belligerent  power  to  which  they  con- 
cede nothing,  and  from  which  of  course  they  expect  nothing 
beyond  the  rights  of  war.     During  the  progress  of  the  contest, 

i.  2  Black,  674. 


RIGHTS    REGARDING    PUBLIC    PROPERTY.  203 

should  they  es  tablish  military  government  over  a  portion  of  the 
territory  of  the  parent  State,  they  will  be  governed  in  dealing 
with  property  found  therein,  whether  private  or  public,  by  the 
principles  heretofore  laid  down  for  the  guidance  of  command- 
ers of  armies  of  independent  powers.  Such  would  be  also  the 
unquestioned  right  of  the  legitimate  government  when  under 
such  circumstances  its  armed  forces  dominate  rebel  territory. 

This  is  fully  illustrated  by  the  acts  of  Congress  bearing  on 
the  subject  passed  during  the  Rebellion  of  186 1-5,  and  the 
executive  action  taken  in  pursuance  thereof. 

Whenever  national  troops  re-established  order  and  set  up  a 
government  of  military  rule  over  an  occupied  rebel  district,  the 
rights  of  persons  and  property  were,  in  general,  respected  and 
enforced.  But  to  work  this  amelioration  in  the  condition  of 
the  people  it  was  necessary  that  the  occupation  should  have  the 
feature  of  permanency  as  contradistinguished  from  the  mere  rules 
of  a  marching  army,  over-running,  devastating,  perhaps,  and 
then  leaving  the  country  behind.  And  whatever  of  kindness 
was  shown  peaceful  inhabitants  and  their  property  the  interest 
of  the  national  government,  the  success  of  her  armies,  were 
always  regarded  as  paramount  to  all  other  considerations. 


204  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 


CHAPTER     XII. 

TRADE   WITH    OCCUPIED    TERRITORY. 

One  of  the  most  important  incidents  of  military  government 
is  the  regulation  of  trade  with  the  subjugated  district.  The 
occupying  State  has  an  unquestioned  right  to  regulate  com- 
mercial intercourse  with  conquered  territory.  It  may  be  abso- 
lutely prohibited,  or  permitted  to  be  unrestricted,  or  such  lim- 
itations may  be  imposed  thereon  as  either  policy  or  a  proper 
attention  to  military  measures  may  justify.  While  the  victor 
maintains  exclusive  possession  of  the  territory  his  title  is  valid. 
Therefore,  the  citizens  of  no  other  nation  have  a  right  to  enter 
it  without  the  permission  of  the  dominant  power.1  Much  less 
can  they  claim  an  unrestricted  right  to  trade  there. 

As  between  parties  belligerent  the  rule  is  that  except  when 
specifically  sanctioned  by  their  respective  governments  all 
commercial  intercourse  with  the  enemy  or  his  allies  is  prohibited. 
"The  law,"  said  Chancellor  Kent,  "has  put  the  sting  of  dis- 
ability into  every  kind  of  voluntary  communication  and  con- 
tact with  an  enemy  which  is  made  without  the  special  permis- 
sion of  the  government.  There  is  wisdom  and  policy,  patriotism 
and  .safety,  in  this  principle,  and  every  relaxation  of  it  tends  to 
corrupt  the  allegiance  of  the  subject  and  to  prolong  the  calami- 
ties of  war. ' '  2  Nor  is  this  restriction  confined  to  trade  in  the 
ordinary  acceptation  of  the  term  ;  but  all  communication  and 
intercourse  with  the  enemy  are  prohibited.  It  matters  not 
whether  the  property  be  bought  or  sold,  or  merely  transported 
and  shipped.  The  contamination  of  forfeiture  is  consummated 
the  moment  it  becomes  the  object  of  illegal  intercourse.3  The 
authorities  are  unanimous  as  to  the  inflexibility  of  this  rule. 
They  emphasize  the  fact  that  there  can  not  at  the  same  time, 
between  the  same  people,  be  a  war  of  arms  and  a  peace  of  com- 

i.  9  Howard,   615;   Bluntschli,   I,  sec.  8;     Manning,   p.   167;    American 
Instructions,  section  5,  clause  1. 

2.  16  Johnson,  459,  460;    9  Wallace,  72. 

3.  8  Cr.,  155  ;  8  Cr.,  382  ;  Whartoa,  Couflict  of  Laws,  sec.  497. 


TRADE    WITH    OCCUPIED   TERRITORY.  205 

merce.  "  One  of  the  immediate  consequences,"  says  Wheaton, 
' '  of  the  commencement  of  hostilities  is  the  interdiction  of  all 
commercial  intercourse  between  the  subjects  of  the  States  at 
war  without  the  license  of  their  respective  governments."  ] 
This  doctrine  renders  null  and  void  all  contracts  with  the 
enemy  during  the  war ; 2  it  makes  illegal  the  insurance  of 
enemy's  property,  prohibits  the  drawing  of  bills  of  exchange 
by  an  alien  enemy  on  the  subjects  of  the  adverse  government,3 
the  purchase  of  bills  on  the  enemy's  country,  or  the  remission 
and  deposit  of  funds  there,  and  the  remission  of  money  or  bills 
to  subjects  of  the  enemy.4  But  it  does  not  necessarily  abrogate 
all  treaties,  which  may  have  been  made  especially  with  a  view 
to  a  possible  state  of  war.5 

To  this  effect  are  repeated  decisions  of  the  Supreme  Court  of 
the  United  States.  ' '  War  when  duly  declared  or  recognized 
as  such  by  the  war-making  power,"  said  that  court,  "  imports 
a  prohibition  to  the  subjects  or  citizens  of  all  commercial  in- 
tercourse and  correspondence  with  citizens  or  persons  domiciled 
in  the  enemy  country.  Upon  this  principle  of  public  law  it  is 
the  established  rule  in  all  commercial  nations  that  trading  with 
the  enemy  except  under  a  government  license  subjects  the 
property  to  confiscation,  or  to  capture  and  condemnation.  Part- 
nership with  a  foreigner  is  dissolved  by  the  same  event  which 
makes  him  an  alien  enemy,  because  there  is  in  this  case  an 
utter  incompatibility  created  by  operation  of  law  between  the 
partners  as  to  their  respective  rights,  duties,  and  obligations, 
both  public  and  private,  which  necessarily  dissolves  the  relation 
independent  of  the  will  or  acts  of  the  parties.  Direct  conse- 
quence of  the  rule  as  established  in  those  cases  is  that  as  soon 
as  war  is  commenced  all  trading,  negotiation,  communication, 
and  intercourse  between  the  citizens  of  one  of  the  belligerents 
with  those  of  the  other  without  the  permission  of  the  govern- 
ment is  unlawful.  No  valid  contract,  therefore,  can  be  made, 
nor  can  any  promise  arise  by  implication  of  law  from  any  trans- 
actions with  the  enemy."  6 


1.  International  Law,  se     309.  2.  8  Cr.,   149;  Wheaton,  sec.  317; 

Kent,  I,  p.  67,  and  note.  3.  6  Taunton,  237.  4.  4  Wall.,  542. 

5.  Bluntschli,  I,  sec.  29.         6.  6  Wallace,  535  ;  8  Cranch,  194 ;  15  Wall.,  185. 


206  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

This  doctrine  is  in  accordance  with  the  best  authorities  on 
international  law.  That  law,  recognized  in  the  Constitution, 
is  adopted  and  used  by  the  United  States,  and  therefore  in 
proper  cases  has  the  force  of  law  in  our  courts  and  with  our 
executive  officers.  Were  it  not  thus  recognized,  adopted,  and 
used  it  would  have  no  force,  and  it  may  be  modified  as  the  gov- 
ernment sees  fit.  If  the  government  did  this  so  as  prejudicially 
to  affect  other  nations  or  the  subjects  thereof,  it  would  of  course 
be  prepared  to  carry  out  its  resolutions  by  military  force.1 
Under  this  responsibility  it  is  competent  for  each  belligerent  to 
establish  rules  of  intercourse  with  the  enemy.  If  this  be  not 
done  the  general  laws  of  war  prevail. 

Such  has  been  the  uniform  course  of  decisions  in  the  Supreme 
Federal  Tribunal.  In  the  case  of  The  Rapid  it  was  determined 
that  after  a  declaration  of  war  an  American  citizen  can  not  law- 
fully send  a  vessel  to  the  enemy's  country  to  bring  away  prop- 
erty which  he  had  stored  there. a  This  was  the  first  case  after 
the  organization  of  the  Supreme  Court  in  which  it  was  called 
upon  to  assert  the  laws  of  war  against  the  property  of  a  citizen . 
The  principles  succinctly  stated  in  that  opinion  have  been 
uniformly  adhered  to  since.  The  inhibition  extends  to  inter- 
course between  persons  who  occupy  towards  each  other  the 
relation  of  debtor  and  creditor.  And  although  a  creditor  may 
have  an  agent  in  an  enemy's  country  to  whom  his  debtor  there 
may  pay  a  debt  contracted  before  the  war,  yet  the  agent  must 
be  one  appointed  before  the  war.  He  can  not  be  one  appointed 
during  it.3  And  if  the  business  transaction  was  conducted  not 
directly  but  through  a  middle  man  it  is  equally  unlawful.  * 

The  same  rule  applies  to  allies.  The  relations  of  the  sub- 
jects of  an  ally  toward  the  common  enemy  are  the  same  as  those 
of  the  principal  belligerent.  There  is  no  distinction  between 
them,  and  if  the  courts  of  their  own  country  do  not  enforce  the 
rights  and  duties  of  war  those  of  the  principal  or  co-belligerent 
may  do  so  ;  for  the  tribunals  of  all  have  an  equal  right  to  en*- 
force  the  laws  of  war  and  to  punish  any  infractions  whether  com- 
mitted by  the  subjects  of  their  own  government  or  that  of  an 
ally.     A  single  belligerent  may  grant  licenses  to  trade   with 

1.  92  U.  S.,  287-'8;  97  U.  S.,  60. 

2.  8  Cranch,  155.  3.  9  Wallace,  75.  4.  Ibid. 


trade  with  occupied  territory.  207 

the  enemy  and  dilute  and  weaken  his  own  rights  at  pleasure, 
but  it  is  otherwise  when  allied  nations  are  pursuing  a  common 
cause.  The  community  of  interests  and  object  and  action 
creates  a  mutual  duty  not  to  prejudice  that  joint  interest,  and 
it  is  a  declared  principle  of  the  law  of  nations,  founded  on  very 
clear  and  just  grounds,  that  one  of  the  belligerents  may  seize 
and  inflict  the  penalty  of  forfeiture  on  the  property  of  a  subject 
of  a  co-ally  engaged  in  a  trade  with  the  common  enemy,  and 
thereby  affording  him  aid  and  comfort,  whilst  the  other  ally  was 
carrying  on  a  severe  and  vigorous  warfare.  It  would  be  con- 
trary to  the  implied  contract  in  every  such  warlike  confederacy 
that  neither  of  the  belligerents  without  the  other's  consent  shall 
do  anything  to  defeat  the  common  object.1  It  follows  as  a  cor- 
allary  to  this  proposition  that  co-belligerents,  unless  they  mu- 
tually consent  to  waive  their  rights  in  the  premises,  should  join 
in  granting  licenses  to  trade  with  the  common  enemy. 

The  profits  derived  from  illegal  trade  successfully  conducted 
during  war  are  enormous.  The  temptations  to  embark  in 
commercial  enterprises  of  this  character  are  correspondingly 
great.  The  boldest  schemers  and  adventurers,  undeterred  by 
attendant  risks,  go  forth  therein  with  a  courage  and  devotion 
worthy  a  better  cause.  It  may  truthfully  be  averred  that  the 
ingenuity  of  man  is  taxed  to  the  utmost  in  devising  means  to 
carry  on  such  illicit  trade  without  incurring  the  penalty  therefor. 
But  it  has  been  in  vain;  the  rigor  of  the  rule  of  condemnation 
has  frustrated  all  such  attempts.2  No  motives  of  compassion  or 
indulgence  prompted  by  the  hardships  of  the  particular  case 
are  permitted  to  suspend  or  mitigate  its  application.3 

In  the  Crimean  war  this  rule  was,  however,  greatly  relaxed. 
It  was  done  by  orders  and  proclamations  issued  in  advance  by 
the  respective  belligerents.  Had  this  not  been  done,  it  was 
acknowledged,  the  courts  and  officers  would  have  been  com- 
pelled rigidly  to  enforce  the  general  rule.  The  order  in  council 
of  the  15th  of  April,  1854,  permitted  British  subjects  to  trade 
freely  at  Russian  ports  not  blockaded,  in  neutral  vessels  and  in 
articles  not  contraband,  but  not  in  British  vessels.     The  French 

1.  Kent,  vol.  I,  p.  69.  2.  Wheaton,  sec.  316  ;  Halleck,  ch.  21,  sec.  3. 

3.  Duer  on  Insurance,  vol.  1,  pp.  556-'9. 


208  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

orders  were  to  the  same  effect.  The  Russian  declaration  of 
the  19th  of  April  permitted  French  and  English  goods,  property 
of  citizens  of  those  countries,  to  be  imported  into  Russia  in 
neutral  vessels.  The  French  and  Russian  governments  allowed 
private  communications,  not  contraband  in  their  nature,  to  be 
exchanged  between  their  subjects  by  telegraph.  These  must, 
however,  be  regarded  as  special  relaxations  of  the  rules  of  war 
adopted  from  reasons  of  policy  by  the  belligerents  interested. 
They  have  no  binding  effect  in  case  of  future  hostilities. 

It  is  the  duty  of  the  commander  to  enforce  the  laws  of  non- 
intercourse  in  territory  subject  to  military  government.  He 
may  organize  a  system  of  trade  with  the  express  or  implied 
sanction  of  his  military  superiors.  In  this  both  he  and  they 
will  be  controlled  by  the  policy  adopted  by  the  conquering 
State  if  it  has  modified  in  this  particular  the  laws  of  war.  And 
so  long  as  the  commander  does  not  transcend  the  limits  estab- 
lished by  those  laws  or  by  this  governmental  policy,  all  rights 
accruing  by  virtue  of  authority  so  exercised  will  be  sustained 
by  the  courts  of  his  own  country.  The  object  which  he  has  in 
view  is  to  create  a  revenue  to  be  used  for  the  prosecution  of  the 
war. 

This  was  the  course  pursued  by  commanders  of  United  States 
forces  in  Mexico.  As  previously  mentioned,  some  of  the  sea- 
ports in  territory  militarily  occupied  were  made  ports  of  entry 
through  which  commerce  was  carried  on  between  Mexico 
and  the  outside  world.  Referring  to  the  establishment  of  the 
custom-house  at  one  of  the  ports  of  entry  so  established,  the 
Supreme  Court  of  the  United  States  said  :  "The  person  who 
acted  in  the  character  of  collector  in  this  instance  acted  as  such 
under  the  authority  of  the  military  commander,  and  in  obedi- 
ence to  his  orders  ;  and  the  duties  he  exacted  and  the  regula- 
tions he  adopted  were  not  those  prescribed  by  law,  but  by  the 
President  in  his  character  of  commander-in-chief.  The  cus- 
tom-house was  established  in  the  enemy's  country  as  one  of 
the  weapons  of  war.  It  was  etablished,  not  for  the  purpose  of 
giving  the  people  of  Tamaulipas  the  benefits  of  commerce  with 
the  United  States  or  with  other  countries,  but  as  a  measure  of 
hostility  and  as  a  part  of  the  military  operations  in  Mexico  ;  it 
was  a  mode  of  exacting  contributions  from  the  enemy  to  support 
our  army,  and  intended  also  to  cripple  the  resources  of  Mexico 


TRADE    WITH    OCCUPIED   TERRITORY.  209 

and  make  it  feel  the  evils  and  burdens  of  the  war.  The  duties 
required  to  be  paid  were  regulated  with  this  view  and  were 
nothing  more  than  contributions  levied  upon  the  enemy  which 
the  usages  of  war  justify  when  an  army  is  operating  in  an 
enemy's  country.1 

A  similar  course  was  pursued  on  the  coast  of  California  dur- 
ing the  same  war.  Pursuant  to  instructions  of  the  President 
the  military  governor,  who  was  also  commander  of  the  United 
States  forces  in  that  quarter,  established  custom-houses  at  the 
principal  sea-ports  for  the  collection  of  duties  on  imports.  The 
tariff  thus  levied  was  merely  a  military  contribution,  author- 
ized by  the  laws  of  war,  the  duty  of  collecting  which  was  de- 
volved upon  army  and  navy  officers.  By  the  treaty  of  peace 
California  was  ceded  to  the  United  States.  As  soon  as  pos- 
sible after  the  ratification  of  this  treaty  the  tariff  of  duties  for 
the  collection  of  military  contributions  ceased,  and  the  revenue 
laws  and  tariff  of  the  United  States  were  substituted  in  its 
place.  But  California  was  not,  for  several  months  after  this, 
brought  by  act  of  Congress  within  a  collection  district  under 
the  revenue  laws  of  the  United  States,  and  not  until  more  than 
a  year  after  the  ratification  of  the  treaty  did  the  collector,  ap- 
pointed pursuant  to  such  laws,  enter  upon  the  discharge  of 
his  duties.  In  the  mean  time  the  duties  were  collected  by  of- 
ficials appointed  by  the  military  commander  the  same  as  when 
war  was  flagrant.  The  Supreme  Court  held  that  such  duties 
were  legally  collected,  not  only  during  the  war,  but  down  to 
the  time  the  regular  collector  entered  upon  his  duties,  more  than 
eighteen  months  after  hostilities  ceased.3 

There  is  in  every  government  some  department  to  which  by 
the  fundamental  laws  of  the  land  is  entrusted  the  determination 
of  the  military  policy  of  the  State.  This  department  it  is  which 
exercises  authority  in  licensing  trade  with  enemy  territory.  In 
Great  Britain  this  power  rests  with  the  crown.'5  In  the  United 
vStates  it  is  vested  in  Congress.  If  Congress  does  not  act  in  the 
premises,  the  Executive  Department  to  which  is  entrusted  the 
command  and  direction  of  the  armies  can  legally   authorize 


1.  9  Howard,  616.  2.   16  Howard,  164  ;  21  Wallace,  87. 

3.  Blackstoue,  I,  pp.  257~'6o  ;  Wheaton,  sec.  310;   1  Robinson,  199;  Man- 
ning, p.  1  68. 


2IO  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

whatever  commercial  intercourse  comports  with  the  laws  of 
war.1  The  instances  just  cited  illustrate  this  fact.  But  when 
Congress  has  spoken  its  will  is  supreme  and  must  be  obeyed. 
If  military  commanders  authorize  intercourse  in  derogation  of 
the  legislative  will,  not  only  do  they  lay  themselves  liable  to 
answer  to  their  government  in  their  official  capacities,  but  no 
valid  rights  arise  out  of  such  usurped  authority. 

The  experiences  of  the  civil  war  are  particularly  instructive 
on  this  point.  It  has  been  seen  that  the  act  of  July  13,  1861, 
prohibited  commercial  intercourse  with  districts  declared  by  the 
President  to  be  in  a  state  of  insurrection,  with  such  exceptions 
as  the  President  might  make  and  under  regulations  established 
by  the  Secretary  of  the  Treasury.  The  districts  in  insurrection 
embraced  the  whole  cotton-producing  territory  of  the  United 
States.  Only  by  rescuing  it  from  rebel  dominion  could  cotton 
be  procured.  Valuable  as  this  commodity  had  always  been, 
the  war  increased  its  commercial  importance  enormously. 
Every  proper  means  was  adopted  by  the  Federal  government 
to  secure  as  large  a  supply  as  possible.  With  the  hope  that  it 
might  be  successfully  cultivated  in  loyal  districts,  Congress,  in 
1862,  passed  an  act  for  the  purchase  under  the  supervision  of 
the  Secretary  of  the  Interior,  of  cotton  seed,  stipulating  that 
the  purchase  should  be  made  from  places  where  cotton  was 
grown  as  far  north  as  practicable. 

One  Hodge  seems  to  have  fancied  he  saw  an  opportunity 
under  cover  of  this  act  to  engage  in  a  lucrative  illegal  trade 
with  the  enemy.  Receiving  from  the  Secretary  of  the  Interior 
a  permit  to  procure  a  cargo  of  cotton  seed  within  the  enemy's 
lines  in  Virginia,  he  proceeded  to  load  his  vessel  with  merchan- 
dise and  carry  it  into  insurrectionary  territory.  It  was  seized 
on  the  outward  voyage  by  revenue  officers  of  the  United 
States  and  libelled  for  forfeiture  in  the  district  court  of  Mary- 
land. The  libel  was  here  dismissed  and  the  decree  was  con- 
firmed on  appeal  to  the  circuit  court.  But  upon  the  case  being 
carried  to  the  Supreme  Court  of  the  United  States  this  decree 
was  reversed.  It  was  admitted  that  the  act  of  Congress  author- 
izing the  purchase  of  the  cotton  seed  contemplated  the  carrying 
on  trade  with  the  prohibited  districts.     In  no  other  way,  as  was 

1.  Halleck,  section  2,  chap.  28;  21  Wallace,  87  ;  Hall,  p.  510. 


TRADE    WITH    OCCUPIED    TERRITORY.  211 

well  known,  could  seed  be  procured.  It  was  not,  therefore,  the 
destination  of  the  vessel  alone  which  rendered  the  voyage  illegal. 
The  respondents  claimed  very  plausibly  that  the  merchandise 
was  for  the  purpose  of  paying  for  the  cotton  seed,  and  that  under 
all  the  circumstances  it  was  the  best  and  readiest  medium  of 
exchange  to  be  had.  But  the  Supreme  Court  brushed  the  claim 
aside  as  a  mere  colorable  pretext.  It  pointed  to  the  fact  that 
under  the  act  of  1861,  the  President  only  was  authorized  to 
license  trade,  and  the  Secretary  of  the  Treasury  alone  to  estab- 
lish regulations  governing  it ;  the  act  authorizing  the  purchase 
in  question  did  not  repeal  any  part  of  the  non-intercourse  act,  and 
consequently  the  Secretary  of  the  Interior  was  not  empowered 
to  authorize  the  dispatching  a  vessel  to  the  prohibited  districts, 
and  properly  construed  his  permit  to  procure  the  cargo  of  cotton 
seed  was  not  an  attempt  to  exercise  such  unwarranted  authority. 
Yet  this  permit,  together  with  a  letter  of  the  Secretary  of  the 
Navy  commanding  navy  officers  to  respect  it,  was  the  only  license 
the  vessel  had.  It  was  trading,  therefore,  in  violation  of  the 
act  of  July  13,  1 86 1,  and  both  vessel  and  cargo  were  declared 
to  be  forfeited.  This  decision  shows  with  what  strictness  laws 
licensing  trade  with  the  enemy  are  construed  by  the  Supreme 
Court ;  and  an  interesting  feature  of  this  particular  case  is  the 
diversity  of  judicial  opinion  which  characterized  its  determina- 
tion— the  district  and  circuit  courts  taking  one  view  and  the 
Supreme  Court  the  opposite.1 

So  as  to  the  case  of  the  Sea  L,ion.  On  February  16,  1863,  a 
special  agent  of  the  Treasury  Department  and  acting  collector 
at  New  Orleans  gave  written  permission  to  certain  parties  there 
resident  to  bring  cotton  from  within  the  Confederate  lines  into 
that  city  and  ship  it  thence  to  any  port  either  foreign  or  do- 
mestic. The  entire  district  around  the  city  was  then  under 
military  government.  The  permit  purported  to  be  issued  pur- 
suant to  a  policy  approved  and  directed  to  be  carried  into  effect 
by  the  United  States  military  officer  commanding  there,  and 
was  endorsed  '  approved '  by  the  rear  admiral  in  command  of 
the  blockading  squadron  on  that  coast.  The  orders  and  in- 
structions of  the  military  commander  were  not  set  out,  but  it 
was  stated  that  they  were  in  the  hands  of  the  grantor  of  the 

1.  3  Wallace,  617. 


2  12  .MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

permit.  Under  this  authority  a  vessel  was  loaded  with  cotton 
at  Mobile,  within  the  enemy's  lines,  and  cleared  ostensibly  for 
Havana,  a  neutral  port.  On  approaching  the  United  States 
blockading  squadron  off  the  coast  it  was  fired  upon,  seized, 
and  together  with  its  cargo  condemned  as  prize  of  war.  The 
ground  of  forfeiture  was  that  the  so-called  license  under  which 
the  vessel  sailed  was  invalid.  It  was  not  granted  by  the  Presi- 
dent, nor  did  it  conform  to  the  regulations  established  by  the 
Secretary  of  the  Treasury.  It  was  a  nullity,  without  warrant  in 
law,  and  in  no  degree  protected  the  property  involved.  No 
importance  was  attached  to  the  approval  of  the  permit  by  the 
naval  commander  in  which  the  court  departed  from  the  prac- 
tice of  English  courts  under  similar  circumstances,  and  it  was 
remarked  that  if  the  military  commander  assumed  to  license 
trade  with  districts  controlled  by  the  enemy  he  transcended  his 
authority,  as  under  the  law  the  President  alone  could  license 
trade,  and  the  Secretary  of  the  Treasury  alone  could  establish 
rules  by  which  it  was  to  be  regulated.1 

Nor  will  the  plea  of  expediency  be  permitted  to  impair  the 
inflexible  nature  of  the  rule  of  non-intercourse.  During  the 
civil  war  it  frequently  happened  that  by  departing  from  the 
strict  construction  of  the  law,  apparent  or  even  very  obvious 
advantages  could  be  gained.  Military  commanders  under  such 
circumstances  were  sometimes  led  to  assume  a  licensing  au- 
thority. When  tested  before  the  Supreme  Court,  however, 
this  course  was  invariably  condemned. 

The  case  of  the  Ouachita  cotton  will  illustrate  this  ;  it  differed 
in  details  from  the  preceding,  but  the  conclusion  arrived  at  was 
the  same.'2  Here  three  distinct  parties  claimed  the  same  cotton. 
Each  alleged  that  he  had  purchased  it,  under  circumstances 
giving  good  title  before  the  United  States  courts,  either  from 
the  Confederate  government  or  its  alienees.  The  first,  a  citizen 
of  a  loyal  State,  found  himself  when  the  rebellion  broke  out  in 
the  midst  of  the  insurgent  territory.  He  was  owner  of  some 
boats  plying  there  in  certain  waters.  Against  all  his  efforts  to 
prevent  it  the  Confederacy  took  military  possession  of  the  boats, 
agreeing  to  pay  a  fair  price  for  the  use  thereof,  which  it  did  by 
turning  over  to  him  through  its  authorized  agents  the  cotton  in 

i.  5  Wallace,  632.  2.  6  Wallace,  521. 


TRADK    WITH    OCCUPIED    TERRITORY.  21$ 

question.  He  did  not  indeed  take  manual  possession  of  it.  It 
was  simply  stored  on  the  plantation  where  it  was  raised  until 
the  new  owner  should  come  and  claim  it.  At  the  time  the 
cotton  became  his  he  was  a  resident  of  New  Orleans,  then  under 
military  government  of  the  Union  forces,  while  the  Confederate 
agent  was  within  territory  dominated  by  the  Confederacy.  The 
transaction  was,  therefore,  a  case  of  dealing  between  inhab- 
itants of  loyal  and  disloyal  districts.  The  same  was  true  of 
each  of  the  other  parties  claimant.  Each  at  the  time  he  pur- 
chased the  cotton  resided  in  New  Orleans,  then  under  the  mili- 
tary government  of  the  Union,  while  the  Confederate  agents 
with  whom  he  negotiated  were  inside  the  enemy's  lines.  Such 
dealings  were  illegal  unless  they  came  within  authorized  ex- 
ceptions to  the  rule  of  non-intercourse.  Bach  party  endeavored 
to  show  that  this  was  true  in  his  particular  case.  The  claim  of 
the  first  was  based  on  assumed  loyalty,  and  the  hardship  of 
his  position,  having  his  property  violently  appropriated  b)'  rebel 
authority  when  the  government  of  his  allegiance  could  no 
longer  protect  him  ;  and  he  alleged  that  in  justice  he  should 
be  permitted  to  accept  and  hold  under  the  actual  circumstances 
of  the  case  the  compensation  which  the  enemy  pursuant  to  its 
pledges  had  given  him.  It  could  not  be  denied  that  the 
transaction  in  strictness  violated  one  of  the  most  unbending 
rules  of  war  ;  but  the  equities  of  the  case  were  relied  on  to  re- 
lieve it  from  the  taint  of  illegality. 

The  claim  of  the  second  party  was  placed  on  different  grounds. 
The  capture  of  New  Orleans  had  surprised  his  alienor  with  a 
large  amount  of  Confederate  currency  which  it  was  alleged  the 
Confederate  government  had  forced  upon  him.  It  being  value- 
less there  after  the  capture,  and  its  effect,  if  it  could  be  put 
into  circulation  in  the  regions  yet  under  rebel  control,  being 
likely  to  yet  further  lower  the  value  of  Confederate  money, 
while  if  cotton  could  be  got  for  it  and  brought  into  loyal 
regions,  that  would  add  to  the  resources  of  the  United 
States, — the  commander  of  the  Union  forces  authorized  the  use 
of  the  currency  to  purchase  cotton  within  the  rebel  lines.  The 
purity  of  the  commander's  motives  was  not  doubted.  His  zeal 
in  the  cause  of  his  country  was  above  suspicion.  He  here  saw 
an  opportunity  to  strike  the  enemy  a  blow  by  depreciating  his 
credit,   while  the  rescuing  a  valuable  product  from  rebel  and 


214  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

placing  it  under  loyal  control  would  still  further  diminish"  the 
resources  of  the  Confederacy  and  add  to  those  of  the  United 
States.  And  certainly  the  purchase  was  calculated  to  compass, 
in  some  degree,  all  these  desirable  purposes.  Granting  this,  it 
still  remained  a  dealing  with  the  enemy  ;  and  notwithstanding 
the  motive  that  prompted  it  or  the  desirability  of  the  objects  to 
be  gained,  the  question  of  the  validity  of  property  rights  thus 
acquired  would  ultimately  depend  upon  the  authority  of  the 
commanding  general  to  grant  permission  to  purchase.  Agree- 
ably to  this  permission,  purchase  was  made  of  the  cotton  from 
the  Confederacy  through  one  of  its  authorized  agents. 

The  alienor  of  the  third  party  claimant  was  a  naturalized 
citizen  of  the  United  States,  and  purchased  the  cotton  of  an 
agent  of  the  Confederate  government.  This  was  a  simple  case 
of  trading  with  the  enemy.  There  was  nothing  about  the  trans- 
action to  give  it,  when  assumed  rights  thereby  accruing  were 
put  in  litigation,  any  standing  in  a  United  States  court.  But  a 
foreign  neutral  having,  in  good  faith  as  alleged,  purchased  the 
cotton,  he  now  came  forward  to  claim  it  only  to  be  told,  how- 
ever, that  his  alienor  having  had  no  valid  title  he  could  have 
none. 

While  the  cotton  remained  on  the  plantation  where  it  was 
raised,  the  United  States  forces  penetrated  into  the  country, 
seized  it,  and  it  was  condemned  and  sold.  Neither  purchaser 
had  taken  possession  of  it  before  seizure  by  the  government. 

It  is  because  of  its  bearing  upon  the  question  of  authority  of 
a  commander  under  military  government  to  license  trade  that 
this  case  is  chiefly  interesting.  On  this  point  the  Supreme 
Court  said  :  ' '  Prohibition  was  the  rule  and  license  to  trade  the 
exception.  No  such  license  was  given  by  the  President  to 
either  of  the  parties  by  whom  the  purchases  of  the  cotton  were 
made  from  the  agents  of  the  rebel  government.  Those  given 
by  the  military  authorities  were  nullities.  They  conferred  no 
rights  whatever.  No  one  could  give  them  but  the  President. 
From  any  other  source  they  were  void.  The  law-making 
power  in  its  wisdom  and  caution  confided  this  important  au- 
thority, so  liable  to  abuse,  to  the  Chief  Magistrate  alone." 

The  case  of  Coppell  v.  Hall  illustrates  the  same  principles.1 
The  regulations  of  the  Treasury  governing  intercourse  with  the 

i.   7  Wallace,  542. 


TRADE    WITH    OCCUPIED   TERRITORY.  215 

enemy  and  established  pursuant  to  law,'  said  :  "Commercial 
intercourse  with  localities  beyond  the  lines  of  military  occupa- 
tion by  the  United  States  forces  is  strictly  prohibited,  and  no 
permit  will  be  granted  for  the  transportation  of  any  property 
to  any  place  under  the  control  of  insurgents  against  the  United 
States. ' '  At  the  date  of  the  issuance  of  these  regulations,  and 
before,  New  Orleans  was  in  military  occupation  of  the  United 
States  forces.  Most  of  the  cotton  region  around  the  city  was 
in  military  possession  of  the  enemy.  In  spite,  however,  of  the 
fact  that  the  President  alone  was  empowered  to  license  trade 
with  insurgent  districts,  which  could  only  be  conducted  under  the 
regulations  of  the  Treasury  Department,  the  commanding  gen- 
eral of  the  military  geographical  department  in  which  New 
Orleans  was  located  issued  orders  authorizing  the  trade  to  be 
conducted  on  the  Mississippi  river  within  that  department, 
subject  to  such  restrictions  as  should  be  necessary  to  prevent 
a  supply  of  provisions  and  munitions  of  war  being  carried  to 
the  enemy.  The  products  of  the  country  were  authorized  to 
be  brought  to  New  Orleans  and  other  designated  points  within 
the  military  lines  of  the  United  States,  and  sold  there  by  the 
proprietors  or  their  factors  ' '  for  the  legal  currency  of  the 
United  States  without  restriction  or  confiscation."  2  In  this 
state  of  orders,  civil  and  military,  Coppell,  a  British  subject, 
and  acting  British  consul  at  New  Orleans,  made  a  contract  with 
a  certain  Hall  residing  in  that  city,  but  both  being  at  the  time 
of  the  contract  in  rebel  territory,  by  which  the  latter  agreed  to 
furnish  the  former  a  large  number  of  bales  of  cotton,  all  of 
which  was  in  districts  dominated  by  the  insurgents.  By  the 
contract  Coppell  agreed  to  cause  the  cotton  to  be  '  protected  ' 
and  transported  to  New  Orleans,  receiving  as  the  consideration 
for  his  services  part  of  the  profits  of  the  sale.  The  '  protection  ' 
guaranteed  was  seenrei  by  Coppell  issuing  certificates  as 
British  Consul,  stating  that  the  cotton  in  question  was  the 
property  of  British  subjects  and  duly  registered  as  such  at  the 
consulate  at  New  Orleans.  Under  these  '  protections,'  and  es- 
caping destruction  from  either  government  or  rebels,  the  cotton 
remained  undisturbed  where  it  was  until  the  close  of  the  war. 
Hall  then  declined  to  perform  the  contract.     Coppell  thereupon 


1.   Act  July  13,  1861  ;  12  Stat,  at  Lg.,  257,  sec.  5.  2.   7  Wallace,  551. 


2  16  MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 

brought  suit  to  compel  performance,  alleging,  among  other 
things,  that  the  contract  was  made  under  the  permission  ex- 
pressed in  the  military  orders  before  referred  to.  The  court  be- 
low held  that  as  both  parties  were  residents  of  New  Orleans 
the  contract  was  valid  under  the  law  of  nations,  and  that  the 
military  orders  then  in  force  authorized  and  gave  validity  to  the 
contract.  Judgment  going  for  the  plaintiff  it  was  reversed  on 
appeal  to  the  Supreme  Court  of  the  United  States.  The  con- 
tract was  declared  to  be  against  public  policy  and  void.  It  was 
remarked  that  the  certificates,  even  if  issued  in  good  faith,  were 
nullities  and  could  give  no  immunity,  while  in  fact  they  were 
intended  to  operate  as  a  means  of  deluding  and  defrauding  the 
United  States.  The  military  orders  set  forth  in  the  record  of 
the  case  were  pronounced  unwarranted  and  void,  as  the  subject- 
matter  was  wholly  beyond  the  sphere  of  the  power  and  duties 
of  the  military  authorities. 

In  the  case  of  McKee  v.  United  States,'  it  appeared  that  a 
loyal  citizen,  resident  of  New  Orleans  when  that  city  and  the 
immediately  surrounding  territory  were  under  the  military  gov- 
ernment of  the  Union,  purchased  of  an  agent  of  the  Confeder- 
ate Treasury  Department  in  western  Louisiana,  then  dominated 
by  the  rebels,  a  large  quantity  of  cotton,  the  private  property  of 
the  agent.  Regarding  the  situation  of  all  people  thus  subject 
to  military  government  the  Supreme  Court  had  remarked  that 
from  the  time  this  species  of  government  was  established  over 
them  they  were  clothed  with  the  same  rights  of  property,  and 
were  subject  to  the  same  inhibitions  and  disabilities  as  to  com- 
mercial intercourse  with  territory  declared  to  be  in  insurrection 
as  the  inhabitants  of  the  loyal  States.2  It  was  plain,  therefore, 
that  McKee' s  purchase  was  illegal  and  vested  no  property  rights 
unless  the  transaction  was  duly  authorized.  There  was  some 
evidence,  not  satisfactory,  however,  tending  to  show  that  he 
had  the  authority  of  a  Treasury  agent  to  trade  in  insurrection- 
ary territory.  And  it  was  conceded  that  he  had  permission 
from  the  military  commander  of  the  forces  of  the  United  States 
in  that  department  to  pass  through  the  Federal  lines  into  the 
rebellious  region  and  bring  away  any  property  that  he  might 

i     8  Wallace,  163. 

2.  6  Wallace,  531  ;  and  see   excepting  clause,   President's  Proclamation, 
Aug.  16,   1861,  12  .Stat,  at  Lg  ,  1262  ;  also  2  Wallace,  277. 


Trade  with  occupied  territory.  217 

purchase  there,  and  there  was  even  evidence  tending  to  show 
that  these  authorities  had  actually  granted  him  a  license  to 
trade.  The  cotton,  before  being  removed  from  the  store-house 
where  purchased,  was  seized  by  the  United  States  military  au- 
thorities and  regularly  condemned  as  enemy  property.  On  ap- 
peal to  the  Supreme  Court  of  the  United  States  the  decree  was 
affirmed.  The  court  remarked  that  as  to  any  permission  to 
trade  given  by  Treasury  agents  it  afforded  no  protection  as  the 
agents  were  acting  outside  the  limits  of  their  authority.  It 
was  further  observed  that  the  power  of  the  military  extended 
no  further  than  to  protect  him  in  going  into  the  lines  of  the 
enemy  and  bringing  from  there  any  property  rightfully  ac- 
quired ;  if,  as  the  evidence  tended  to  show,  the  military  authori- 
ties went  further  and  granted  him  also  a  license  to  trade,  such 
a  license  was  void.  In  one  feature  this  case  differed  from  any 
previously  mentioned.  As  the  alienor  of  the  cotton  was  a  Con- 
federate Treasury  official,  his  property,  under  the  provisions  of 
section  5  of  the  act  of  July  17,  1862,  was,  on  that  account,  ren- 
dered forfeitable,  and  all  sales,  transfers,  or  conveyances  thereof 
declared  illegal.  Therefore,  at  the  time  of  the  purchase,  he  had 
no  capacity  to  dispose  of  it  nor  could  McKee  acquire  title  to  it. 
As  the  war  progressed,  the  policy  of  the  government  regard- 
ing commercial  intercourse  grew  more  restricted.  From  first 
to  last  trade  with  territory  within  the  enemy's  lines  was  abso- 
lutely prohibited  except  as  otherwise  provided  by  law.  All 
attempts  to  evade  the  rule  led  when  detected  to  forfeiture  of 
the  property  involved.  At  first,  however,  it  was  deemed  wise 
to  encourage  private  enterprise  by  authorizing  such  limited 
intercourse  with  insurrectionary  districts  as  would  not  jeop- 
ardize the  success  of  military  operations.  It  was  with  this 
object  in  view  that  the  President  was  given  power  to  grant 
licenses  to  trade  as  before  mentioned.  Responding  to  the  liberal 
sentiments  of  Congress,  the  President  excepted  from  the  rule  of 
11011- intercourse  districts  where  the  loyalty  of  the  people  was 
pronounced.  He  went  further.  By  a  sweeping  clause  in  his 
proclamation  he  excepted  all  rebellious  districts  which  from 
time  to  time  were  occupied  and  controlled  by  forces  of  the 
United  States  engaged  in  the  dispersing  of  the  insurgents.  It 
was  a  beneficent  executive  act,  conceived  in  a  spirit  of  charity. 
It  was  too  generous.     The  abuses  which  grew  out  of  the  license 


2l8  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

here  given,  even  restricted  as  it  was  by  regulations  prepared  by 
the  Secretary  of  the  Treasury,  which  if  faithfully  executed 
would  have  prevented  abuse,  led  first  to  the  President  confining 
commercial  intercourse  to  West  Virginia  and  a  very  few  sea- 
ports of  the  insurgent  territory,  and  finally  to  additional  action 
on  the  part  of  Congress  to  meet  the  evil.1  These  steps,  so  at 
variance  with  the  original  policy  of  the  government,  were  not 
taken  without  due  cause  and  until  after  mature  reflection.  The 
radical  departure  from  previous  practices  which  they  indicated 
proved  that  experience  had  taught  that  a  wholly  different  rule 
of  action  in  this  regard  was  a  military  necessity. 

The  mischiefs  attending  private  trading  with  the  enemy  even 
in  those  parts  of  the  insurrectionary  districts  for  the  time  within 
our  military  lines  were  seriously  felt.  The  best  interests  of  the 
country  required  that  it  should  cease.  Yet  it  was  deemed  im- 
portant still  to  maintain  some  species  of  commercial  intercourse. 
The  government  desired  to  have,  if  it  did  not  interfere  with 
military  operations,  the  products  of  the  south,  and  particularly 
cotton,  brought  within  the  Union  lines.  To  accomplish  this 
end  and  at  the  same  time  avoid  the  complications  and  embar- 
rassments incident  to  private  trading,  required  the  inauguration 
of  a  new  system. 

This  was  begun  by  the  President 2  and  completed  by  Congress 
in  the  act  of  July  2,  1864.3  The  privilege  of  trading  with  dis- 
tricts redeemed  from  the  enemy  was  taken  away  from  the  citi- 
zens, but  the  Secretary  of  the  Treasury,  with  the  approval  of 
the  President,  was  allowed  to  purchase  through  agents  for  the 
United  States  the  products  of  such  districts.  Trade  therewith 
became  a  government  monopoly.  But  the  limitations  on  trade 
did  not  end  here  ;  even  within  insurrectionary  districts  domi- 
nated by  Union  arms,  all  commercial  intercourse  of  people 
residing  or  being  there  with  one  another  was  made  subject  to 
the  restrictions  of  the  act  of  July  13,  1861  ;  that  is,  it  could  only 
be  conducted  under  the  license  of  the  President,  and  in  con- 
formity with  regulations  prescribed  by  the  Secretary  of  the 
Treasury.4  Further,  the  licensing  power  of  the  President  under 
that  act,  as  to  trade  between  loyal  districts  and  others  rescued 

1.  13  Stat,  at  Lg.,  p.  731.  2.  See  Ibid. 

3.  Ch.  255,  13  Stat,  at  Lg.,  p.  375-  4-  Sec.  4,  Ibid. 


TRADE   WITH    OCCUPIED   TERRITORY.  2 19 

from  rebellion,  was  repealed,  except  so  far  as  was  necessary  to 
supply  the  necessities  of  loyal  people  residing  there,  and  except 
also  that  all  the  people  might,  under  proper  regulations,  bring 
into  the  markets  of  loyal  States  the  products  of  their  own  labor 
or  of  others  employed  by  them.  And  no  goods,  wares,  or  mer- 
chandise were  permitted  to  be  taken  within  the  lines  of  national 
military  occupation  of  insurrectionary  districts,  except  in  such 
quantities  and  at  such  places  as  should  be  agreed  upon  in  writ- 
ing by  the  military  commander  of  the  district  and  the  agents  of 
the  Treasury  Department.1  The  prohibition  of  trade  was  ex- 
tended to  any  part  of  loyal  States  under  control  of  the  insur- 
gents, or  in  dangerous  proximity  to  places  under  their  control, 
except  as  prescribed  by  the  Secretary  of  the  Treasury  with  the 
approval  of  the  President. 

We  can  not  misunderstand  the  object  of  this  law.  It  was  in- 
tended to  put  a  stop  to  all  private  trade  with  insurrectionary 
districts  held  by  the  national  arms,  and  it  would  have  been  dif- 
ficult to  formulate  language  better  calculated  to  compass  that 
end.  As  for  authorizing  any  species  of  trade,  whether  on  be- 
half of  the  government  or  by  private  citizens,  with  territory  in- 
side the  enemy's  lines,  no  such  proposition  appears  to  have 
been  dreamed  of,  and  no  regulations  promulgated  by  the  Sec- 
retary of  the  Treasury  either  in  pursuance  of  this  law  or  at 
any  other  time  contemplated  such  intercourse. 

As  might  be  anticipated  attempts  to  evade  these  laws  were 
very  numerous.  But  the  national  courts  were  filled  with  loyal 
judges.  The  national  judiciary  sustained  the  other  depart- 
ments of  government  with  a  steady  and  strong  hand.  This 
was  well  illustrated  in  the  case  of  United  States  v.  L,ane.2  Un- 
der section  8  of  the  act  of  July  2,  1864,  mentioned,  the  pur- 
chase of  products  of  insurrectionary  States  for  the  United 
States,  under  proper  regulations,  was,  as  just  observed,  per- 
mitted at  places  designated  by  the  Secretary  of  the  Treasury. 
Norfolk,  Virginia,  was  one  of  the  places  so  selected.  In  the 
case  mentioned  it  appeared  that  the  Treasury  agent  at  Norfolk 
granted  permission  to  a  citizen  of  a  loyal  State  to  enter  the 
enemy's  lines  with  a  cargo  of  assorted  merchandise,  and  bring 
thence  into  the  Union  lines  at  Norfolk  a  return  cargo  of  cotton. 

1.  Sec.  9,  Ibid.  2.  8  Wallace,  185. 


220  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

The  military  commander  of  that  district  through  which  the 
vessel  passed  gave  her  safe-conduct.  On  her  return  voyage  she 
was  seized  by  the  navy,  but  released  after  a  slight  detention, 
only,  however,  to  be  seized  by  the  same  authorities  before  she 
reached  her  destination,  Norfolk.  Being  brought  thence  to 
Washington,  D.  C,  the  vessel  was  libelled,  at  the  instance  of 
the  United  States,  in  the  Supreme  Court  of  the  District  of  Co- 
lumbia sitting  in  admiralty,  but  decree  with  costs  went  against 
the  libellant. 

There  could  not  be  a  clearer  case  of  trading  with  the  enemy 
for  private  profit  than  this.  And  yet,  down  to  the  point  now 
reached,  it  had  the  sanction  of  the  Treasury  official  directly 
interested,  the  military  commander,  the  navy  officers  in  part, 
and  the  judiciary.  Before  the  cotton  was  sold  the  price  had 
fallen,  and  suit  was  brought  in  the  Court  of  Claims  against  the 
government  for  damages  caused  by  the  wrongful  detention  of 
the  vessel  by  the  navy.  Here  again  the  ruling  was  against  the 
government,  and  appeal  was  then  taken  to  the  Supreme  Court 
of  the  United  States  where  the  judgment  was  reversed.  The 
contract  entered  into  between  the  Treasury  agent  at  Norfolk 
and  Lane  for  bringing  out  the  cotton  was  pronounced  illegal 
and  without  any  binding  effect  upon  the  government.  "At 
the  time  this  contract  purports  to  have  been  made,"  remarked 
the  court,  "this  country  was  engaged  in  a  war  with  a  formid- 
able enemy,  and  by  a  universally  recognized  principle  of  pub- 
lic law  commercial  intercourse  between  States  at  war  with  each 
other  is  interdicted.  It  needs  no  special  declaration  on  the 
part  of  the  sovereign  to  accomplish  this  result,  for  it  follows 
from  the  very  nature  of  war  that  trading  between  belligerents 
should  cease.  If  commercial  intercourse  were  allowable  it 
would  oftentimes  be  used  as  a  color  for  intercourse  of  an  en- 
tirely different  character,  and  in  such  a  case  the  mischievous  con- 
sequences that  would  ensue  can  be  readily  foreseen.  But  the 
rigidity  of  this  rule  can  be  relaxed  by  the  sovereign,  and  the 
laws  of  war  so  far  suspended  as  to  permit  trade  with  the  enemy. 
Each  State  settles  for  itself  its  own  policy  and  determines 
whether  its  true  interests  are  better  promoted  by  granting  or 
withholding  licenses  to  trade  with  the  enemy.  It  being  the 
rule,  therefore,  that  business  intercourse  with  the  enemy  is  un- 
lawful unless  directly  sanctioned,  the   inquiry   arises  whether 


TRADE   WITH    OCCUPIED   TERRITORY.  221 

there  was  any  law  of  Congress  in  force  at  the  time  that  sanc- 
tioned this  transaction." 

It  has  been  seen  that  the  act  of  July  2,  1864,  section  8,  au- 
thorized the  purchase,  on  account  of  the  United  States,  of  pro- 
ducts of  the  insurrectionary  States.  Standing  by  itself  this 
language  is  broad  enough  to  authorize  trading  of  the  nature 
indicated  with  the  enemy.  But  the  statute  must  be  construed  in 
connection  with  other  statutes  on  the  same  subject  and  the 
legalized  practices  thereunder.  They  are  in  pari  materia,  and 
must  be  considered  together  as  one  system  and  as  explanatory 
of  each  other.1  Under  preceding  laws,  however,  such  trade 
was  absolutely  prohibited.  The  presumption  was  that  unless 
Congress  expressly  provided  to  the  contrary  this  policy  was  to 
be  continued.  This  Congress  did  not  do,  and  the  mere  absence 
of  express  words  of  limitation  as  to  the  character  of  trade  that 
was  authorized  on  government  account  in  the  8th  section  of  the 
act  was  not  to  be  construed  as  warranting  a  species  of  com- 
mercial intercourse  which  previously  had  been  strictly  pro- 
hibited. This  view  was  strengthened  by  the  stringent  inhibi- 
tions on  trade  with  or  within  districts  dominated  by  the  Union 
arms  contained  in  the  4th  and  9th  sections  of  the  same  act. 
Reasoning  thus  the  conclusion  reached  \yy  the  court  was  that 
the  trade  with  enemy  territory  which  this  so-called  contract 
professed  to  authorize  was  illegal,  and  that  all  who  had  sanc- 
tioned it,  including  the  military  commander  who  gave  the  safe 
conduct,  had  transcended  their  powers. 

In  Hamilton  v.  Dillin  the  licensing  power  of  the  President 
and  the  legal  effect  of  Treasury  regulations  regarding  trade 
with  the  insurrectionary  districts  again  came  up  for  review.2 
The  revised  regulations  of  September  11,  1863,  directed  that 
four  cents  per  pound  should  be  paid  by  those  obtaining  per- 
mits to  purchase  cotton  in  insurrectionary  districts  and  bring  it 
into  loyal  States  Dillin  was  the  surveyor  at  the  port  of  Nash- 
ville, Tennessee,  and  was  the  authorized  Treasury  agent  to  col- 
lect this  charge  from  those  who,  under  proper  permits,  brought 
out  cotton  through  that  port.  Hamilton  was  one  of  these.  Dur- 
ing 1863  and  1864  he  paid  Dillin  large  sums  of  money  on  ac- 

1.  Sedgwick  on  Construction,  Const,  and  Statutory  Laws,  pp.  209210. 

2.  21  Wallace,  73. 


222  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

count  of  this  charge,  which  he  afterwards  sought  to  recover 
back  on  the  ground  that  the  imposition  of  the  charge  was  an 
exercise  of  the  taxing  power  confided  by  the  Constitution  to 
Congress,  and  therefore  not  to  be  assumed  by  the  Executive 
Department.1  But  the  court  held  otherwise;  that  the  impo- 
sition of  the  charge  was  an  exercise  of  the  war  powers  of  the 
government ;  that  Congress  had  entrusted  all  licensing  power 
to  the  President  and  this  was  a  proper  exercise  of  it.  ' '  By 
the  Constitution  of  the  United  States,"  said  the  court,  "the 
power  to  declare  war  is  confided  to  Congress.  The  executive 
power  and  command  of  the  military  and  naval  forces  is  vested 
in  the  President.  Whether  in  the  absence  of  Congressional 
action  the  power  of  permitting  partial  intercourse  with  a  public 
enemy  may  or  ma)'  not  be  exercised  by  the  President  alone, 
who  is  constitutionally  invested  with  the  entire  charge  of  hos- 
tile operations,  it  is  not  now  necessary  to  decide,  although  it 
would  seem  that  little  doubt  could  be  raised  on  the  subject." 
But  whatever  view  may  be  taken  of  the  precise  boundary  be- 
tween the  legislative  and  executive  powers  in  reference  to  the 
question  under  consideration,  no  doubt  can  be  entertained  that 
a  concurrence  of  both  affords  ample  foundation  for  any  regula- 
tions on  the  subject. 

There  was  another  point  of  interest  in  this  case.  Nashville 
was  captured  by  the  Federal  forces  at  an  early  period  of  the 
war — the  spring  of  1862.  Both  the  city  itself  and  the  country 
immediately  surrounding  it  were  thereafter  permanently  held 
to  the  Union  cause.  Was  Nashville,  therefore,  in  1863  and 
1864,  when  the  charge  of  4  cents  per  pound  on  cotton  was  col- 
lected, enemy  country  ?  If  so,  trade  therewith  to  be  legal 
must  be  licensed,  but  if  it  were  not  enemy  territory  commercial 
intercourse  therewith  would  be  free.  The  court  held  that  it 
must  be  regarded  at  the  time  the  moneys  were  paid  as  enemy 
territory.  The  whole  State  of  Tennessee  had  been  declared  by 
the  President  to  be  in  insurrection.2  And  although  the  perma- 
nent occupation  of  Nashville  by  the  United  States  Armies  would, 
under  the  terms  of  the  same  proclamation,  have  authorized  trade 
therewith,  yet  as  to  Nashville  or  any  part  of  Tennessee  this 
favorable    status    was   taken   away   by   subsequent   executive 

1.  Constitution  U.  S.,  Art.  1,  sec.  8,  clause  1. 
2.  Proclamation,  August  16,  1861  ;  12  Stat,  at  L,g.,  1262. 


TRADE   WITH    OCCUPIED    TERRITORY.  223 

action.1  At  the  time  these  moneys  were  paid,  therefore,  not- 
withstanding large  districts  of  Tennessee  were  permanently 
occupied  by  Union  forces  ;  that  an  eminent  citizen,  a  civilian, 
was  military  governor  of  the  State,  yet  due  to  this  last  men- 
tioned action  of  the  President  the  disabilities  of  insurrectionary 
and  enemy  territory  returned  and  everywhere  rested  upon  it 
until  the  close  of  the  war. 

The  cases  cited,  and  which  might  be  multiplied,  make  clear 
that  commanders  governing  territory  militarily  occupied  have 
not  original  authority  to  license  trade  with  the  enemy.  It 
seems  in  the  absence  of  statutory  inhibition  to  be  within  the 
powers  of  the  President  to  authorize  them  to  do  this.'2  That 
the  concurrent  action  of  the  President  and  of  Congress  is  suffi- 
cient to  legalize  such  trade  does  not  admit  of  doubt.  Com- 
manders have  occasionally  assumed  the  authority  here  denied 
them.  Nor  is  this  matter  of  surprise,  for  as  they  unquestion- 
ably may  authorize  whatever  is  necessary  to  supply  their  troops 
partially  or  wholly  from  the  products  of  the  occupied  country, 
and  in  the  most  convenient  manner  gather  its  resources  as  mili- 
tary contributions,  which  in  one  sense  may  be  said  to  be 
licensing  trade,  it  is  not  under  all  circumstances  easy  to  define 
the  limits  of  their  power  in  this  direction.3  It  is  private  trade, 
usually  called  commercial  intercourse,  that  is  prohibited.  The 
sole  authority  of  the  military  commander  is  not  sufficient  to 
vest  legal  title  in  property  thus  acquired.  Instances  of  this 
kind  which  grew  out  of  the  civil  war  are  numerous.  In  the 
determination  of  the  cases  that  came  before  the  Supreme  Court 
of  the  United  States  a  position  was  uniformly  taken  adverse  to 
the  licensing  power. 

The  rule  of  non-intercourse  requires  nothing  more  to  bring 
it  into  operation  than  the  existence  of  war.  But  as  before  re- 
marked, wars  do  not  always  begin  in  the  same  manner — in  some 
cases  being  entered  upon  with  great  deliberation,  while  in 
others  they  are  precipitated  unexpectedly  from  sheer  force  of 
circumstances.*  Nor  does  every  unfriendly  act  necessarily 
presage  hostilities.  International  law  recognizes  several  meas- 
ures, warlike  in  their  nature,  which  may  be  resorted  to  without 

1.  Ibid.,  April  2,  1863  ;  13  Ibid.,  731.  2.  Kent,  I,  92,  note  (b) ; 

21  Wallace,  87  ;  20  Howard,  176;  16  Howard,  164.  3.  Halleck, 

ch.  28,  sees.  2,  3.  4.  2  Black,  668  ;  Wheaton,  section  298. 


224  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

necessarily  precipitating  war,  although  they  are  generally  pre- 
liminary thereto.  An  embargo  or  sequestration  may  be  laid  on 
the  ships  or  goods  of  an  offending  nation  ;  forcible  possession 
may  be  taken  of  the  thing  in  controversy  ;  retaliation,  vindic- 
tive or  amicable,  may  be  practiced  ;  and  reprisals  may  be  au- 
thorized.1 These  are  extreme  measures;  they  border  on  the 
domain  of  belligerency  ;  but  they  do  not  of  themselves  inter- 
rupt private  trade. 

The  war  of  1812  between  the  United  States  and  Great  Britain 
was  begun  by  act  of  Congress  of  June  18th  of  that  year.2  By 
that  act  all  the  inhabitants  of  the  one  became  technically 
enemies  of  those  of  the  other  country.  Commercial  intercourse 
thereafter  between  them,  except  under  government  license, 
was  illegal.  The  war  with  Mexico  presented  another  phase  of 
the  same  subject.  Not  until  after  battles  had  been  fought  was 
it  announced  by  act  of  Congress  to  the  citizens  of  the  United 
States  that  a  state  of  war  existed/'  That  hostilities  had  been  in 
progress  both  before  and  at  the  date  of  the  passage  of  that  act 
did  not,  however,  render  illegal  commercial  transactions  be- 
tween citizens  of  the  respective  belligerents  before  that 
date,  or  subject  property  embarked  therein  to  condemna- 
tion. The  President  had  not,  because  war  was  flagrant, 
prior  to  congressional  recognition,  indicated  the  principles  upon 
which  it  should  be  conducted  further  than  by  beating  the 
enemy's  armies  in  the  field.  That  he  had  by  virtue  of  his  au- 
thority as  commander-in-chief  full  power  to  conduct  hostilities 
in  accordance  with  the  laws  of  war  is  not  questioned.  That 
under  this  power  he  might  have  restricted  trade  with  the 
enemy  until  Congress  could  act  in  the  premises  is  scarcely  open 
to  doubt.4  The  date  of  the  act  of  Congress,  therefore,  was  that 
which  marked  the  period  when  commercial  intercourse  between 
the  belligerents  became  illegal. 

It  is  thus  evident  that  to  interdict  trade  between  nations  the 
people  must  have  legal  warning  that  war  exists.  That  knowl- 
edge is  generally  brought  home  to  them  by  a  declaration  to 
that  effect  on  the  part  of  that  branch  of  the  government  which 
under  the  organic  law  is  entrusted  with  the  decision  of  the 


1.  Wheaton,  Int.  Law,  sec.  290.  2.  Chap.  102,  2  Stat,  at  Lg.,  755- 

3.  May  13,  1S46,  chap.  16,  Stat,  at  Lg.,  9,  p.  9.  4-  2  Black,  668  ; 

21  Wallace,  87;  91  U.  S.,  11. 


TRADE    WITH    OCCUPIED   TERRITORY.  225 

question  of  war  or  peace.  This  department  of  government  may 
be  either  the  executive  or  legislative,  depending  on  the  Consti- 
tution of  the  State,  or  the  particular  circumstances  of  the  case. 

Commercial  intercourse  is  the  rule  among  the  peoples  of  the 
earth,  unrestricted  except  by  treaties  or  by  municipal  laws.  It 
will  not  be  rendered  illegal  by  implications  drawn  from  particu- 
lar and  isolated  cases  of  hostile  actions  which  may  or  may  not 
precipitate  a  state  of  war.  Reason  requires  that  before  the 
normal  state  of  trade  be  interrupted,  and  property  engaged 
therein  be  rendered  forfeitable,  those  who  are  interested  should, 
in  some  unequivocal  manner,  be  informed  that  it  will  no  longer 
be  permitted  or  be  allowed  only  under  particular  conditions, 
and  this  view  conforms  to  the  practice  of  nations,  the  writings 
of  publicists,  and  the  decisions  of  jurists. 

The  opinion  of  the  Supreme  Court  of  the  United  States  in 
Mathews  v.  McStea  is  instructive  on  this  point.1  In  that  case 
a  bill  of  exchange  dated  New  Orleans,  April  23,  1861,  in  favor 
of  McStea  and  payable  in  one  year  was  accepted  on  the  day  of 
its  date  by  the  firm  of  which  Mathews  was  a  member. 
Mathews  was  a  resident  of  New  York  and  the  other  members 
of  the  firm  were  residents  of  New  Orleans.  The  bill  of  ex- 
change being  dishonored,  and  suit  against  Mathews  brought 
thereon,  the  defense  was  set  up  that  before  the  acceptance  the 
co-partnership  was  dissolved  by  the  war  of  the  rebellion.  This 
defense  was  not  sustained  by  the  court  of  common  pleas  for 
the  city  and  county  of  New  York,  and  its  judgment  was  af- 
firmed by  the  court  of  appeals  and  the  judgment  of  the  latter 
by  the  Supreme  Court  of  the  United  States. 

That  the  civil  war  had  an  existence  commencing  before  that 
date  was  admitted  as  an  established  fact.  This  it  will  be  re- 
membered was  determined  in  the  prize  cases  in  which  it  was 
held  that  the  President's  proclamation  of  April  19,  1861,  set- 
ting on  foot  a  blockade  of  the  ports  of  Louisiana  among  other 
States,  was  conclusive  evidence  that  a  state  of  war  existed  be- 
tween the  people  inhabiting  those  States  and  the  United  States. 
It  was  conceded,  as  a  general  rule,  to  be  one  of  the  immediate 
consequences  of  a  declaration  of  war,  and  the  effect  of  a  state  of 
war  even  when  not  declared,  that  all  commercial  intercourse 
and  dealing  between  the  subjects  or  adherents  of  the  contending 
powers  is  unlawful  and  is  interdicted  ;  further,  that  it  dissolves 

1.  91  U.  S.,  7. 


226  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

commercial  partnerships  existing  between  those  subjects  prior  to 
the  war.  In  this  regard  it  was  admitted  that  civil  war,  par- 
ticularly when  sectional,  brought  with  it  all  the  consequences 
which  attend  upon  and  follow  a  state  of  foreign  war. 

Now  the  acceptance  of  the  bill  of  exchange  in  question  was 
of  a  date  when  it  wTas  conceded  that  a  state  of  war  existed. 
Moreover,  the  President,  by  a  belligerent  act,  the  issuing  a 
proclamation  of  blockade,  had  announced  to  the  world  that 
war  was  being  waged,  and  property  captured  at  sea  violating 
the  blockade  was  condemned  as  prize  of  war.  The  presumption 
that  the  same  executive  act  dissolved  existing  partnerships  and 
interdicted  trade  certainly  would  not  therefore  seem  to  be  a 
violent  one.  Yet  the  court  decided  that  such  was  not  the  case 
in  this  instance. 

The  reasoning  by  which  this  conclusion  was  arrived  at  is  in- 
teresting. It  was  observed  that  while  the  rule  interdicting 
commerce  and  dissolving  partnerships  before  laid  down  was 
general  it  was  not  without  exceptions.  Trading  with  the 
enemy  may  be  authorized  by  the  sovereign.  This  is  a  partial 
suspension  of  the  laws  of  war,  but  not  of  the  war  itself.  This 
being  so,  a  state  of  war  and  at  the  same  time  the  maintenance 
of  commercial  intercourse  being  permissible  under  proper  cir- 
cumstances and  anthority,  the  question  to  be  decided  was 
whether  such  intercourse  was  permitted  between  the  loyal  citi- 
zens of  the  United  States  and  the  citizens  of  Louisiana  until 
the  23d  of  April,  1861.  In  determining  this  the  character  of 
the  war  and  the  manner  in  which  it  was  commenced  ought  not 
to  be  overlooked.  No  declaration  of  war  was  ever  made. 
When  the  President  recognized  its  existence  by  the  proclama- 
tion of  blockade,  April  19,  1861,  it  then  became  his  duty  as 
well  as  his  right  to  direct  how  it  should  be  carried  on.  "  In 
the  exercise  of  this  right  he  was  at  liberty  to  allow  or  license 
intercourse,  and  his  proclamations,  if  they  did  not  license  it  ex- 
pressly, did,  in  our  opinion,  license  it  by  very  cogent  impli- 
cations. It  is  impossible  to  read  them  without  a  conviction 
that  no  interdiction  of  commercial  intercourse  except  through 
the  ports  of  the  designated  States  was  intended." 

The  first  was  that  proclamation  of  April  15,  1861,  calling  out 
the  militia  to  repossess  the  forts,   places,   and  property  of  the 


Trade  with  occupied  territory.  227 

United  States  seized  by  the  insurgents.  *  But  while  this  was  to  be 
done  it  was  expressly  enjoined  that  the  utmost  care  be  observed, 
consistently  with  these  objects,  to  avoid  devastation,  destruc- 
tion, or  interference  with  property,  or  disturbance  of  peaceful 
citizens  in  any  part  of  the  country.  This  proclamation  did  not 
proceed  upon  the  principle  that  the  people  of  the  States  where 
the  unlawful  combinations  existed  were  to  be  treated  as  public 
enemies.  The  forts  and  public  property  which  it  was  here  pro- 
posed to  retake  had  been  seized  by  armed  forces.  Hostilities 
had  commenced,  and  in  the  light  of  subsequent  events  it  must 
be  considered  that  a  state  of  war  then  existed.  Yet  the  procla- 
mation was  not  a  distinct  recognition  of  an  existing  state  of 
war.  The  armed  force  of  the  nation  was  to  be  used  to  wrest 
the  public  property  from  the  hands  of  those  who  had  formed 
combinations  against  the  authority  of  the  United  States  ;  but 
further  than  this  the  people  were  to  be  treated  as  friends.  Even 
the  blockade  was  instituted  with  a  view  only  to  the  protection 
of  the  public  peace  and  the  lives  and  property  of  quiet  and  or- 
derly citizens  who  within  the  insurrectionary  States  were  pur- 
suing their  lawful  occupations.  Hence  the  court  inferred  that 
the  only  interference  with  the  business  relations  of  citizens  in 
all  parts  of  the  country  contemplated  by  the  proclamation  was 
such  as  the  blockade  might  cause.  And  in  confirmation  of  this 
view  the  fact  was  cited  that  the  mail  service  was  continued  in 
Louisiana  and  the  other  insurrectionary  States  long  after  the 
blockade  was  declared  ;  a  fact  which,  if  it  did  not  authorize 
business  intercourse,  was  well  fitted  to  deceive  the  public. 
"  But,"  it  was  truthfully  remarked,  "  in  a  civil  more  than  in  a 
foreign  war,  or  a  war  declared,  it  is  important  that  unequivocal 
notice  should  be  given  of  the  illegality  of  traffic  or  commercial 
intercourse,  for  in  a  civil  war  only  the  government  can  know 
when  the  insurrection  has  assumed  the  character  of  war." 

If,  however,  the  proclamations  considered  by  themselves  ieft 
the  question  of  non-intercourse  in  doubt,  the  act  of  Congress  of 
July  13,  1861,  before  cited,  put  the  matter  at  rest.  That  act 
was  passed  in  view  of  the  state  of  the  country  then  existing, 
and  of  the  proclamations  which  the  President  had  issued.  It 
authorized  the  President  in  a  case  described,   and  which  then 

1.   12  Stat,  at  Lg.,  1258. 


228  MILITARY    GOVKRNMENT    AND   MARTIAL    LAW. 

existed,  to  declare  by  proclamation  that  the  inhabitants  of  cer- 
tain States  were  in  a  state  of  insurrection  against  the  United 
States  ;  ' '  and  thereupon  all  commercial  intercourse  by  and  be- 
tween the  same  and  the  citizens  thereof,  and  the  citizens  of  the 
rest  of  the  United  States,  shall  cease  and  be  unlawful  so  long  as 
such  condition  of  hostility  shall  continue."  Pursuant  to  the 
terms  of  the  act  the  proclamation  of  August  16,  1861,  was  is- 
sued, interdicting  all  commercial  intercourse  between  the  sub- 
jects of  the  parties  belligerent  with  certain  exceptions  provided 
for  in  the  act.1  Both  act  and  proclamation  exhibit  a  clear  im- 
plication that  before  the  first  was  enacted  and  the  second  issued 
commercial  intercourse  was  not  unlawful.  What  need  of  de- 
claring that  it  should  cease  if  it  had  ceased,  or  been  unlawful 
before  ?  The  enactment  that  it  should  not  be  permitted  after 
a  day  then  in  the  future  must  be  considered  an  implied  appre- 
ciation that  up  to  that  day  it  was  lawful,  and  certainly  Congress 
had  the  power  to  relax  any  of  the  ordinary  rules  of  war.2 

The  question  as  to  when  commercial  intercourse  between  the 
subjects  of  opposing  belligerents  becomes  illegal  is  reducible  to  a 
few  simple  principles.  First,  war  places  every  individual  of 
the  respective  governments,  as  well  as  the  governments  them- 
selves, in  a  state  of  hostility  ;  second,  individual  citizens  or  sub- 
jects do  not  determine  each  for  himself  that  a  state  of  war  either 
shall  or  does  exist ;  this  exercise  of  sovereign  power  is  confided 
to  that  department  of  government  alone  which  under  varying 
circumstances  is  entrusted  with  the  defense  of  the  nation  or 
vindicating  its  honor ;  and  until  that  determination  is  duly 
notified  to  the  citizens  or  subjects,  they  have  a  right  to  presume 
that  the  laws  and  immunities  of  peace  prevail ;  third,  when 
this  notification  is  conveyed  to  citizens  or  subjects  trading  with 
the  enemy  becomes  illegal  and  property  engaged  therein  becomes 
subject  to  condemnation  ;  this  rule  is  in  general  inflexible  but  its 
severity  may  be  relaxed  either  expressly  by  act  of  the  notifying 
power  or  by  inference  from  particular  circumstances  ;  fourth,  a 
formal  declaration  of  war  is  such  a  notification  ;  fifth,  when 
hostilities  are  precipitated  without  this  formality,  as  is  some- 
times the  case  with  foreign  and  always  with  civil  wars,  a  proc- 
lamation or  manifesto  announcing  the  fact,  issued  by  that  de- 

1.   12  vStat.  at  Lg.,  256.  2.   21  Wallace,  97. 


TRADE    WITH    OCCUPIED    TERRITORY.  229 

partment  of  the  government  upon  which  devolves  the  duty  of 
meeting  the  danger  and  directing  to  that  end  the  military  forces 
of  the  nation,  brings  home  to  all  the  subjects  thereof  sufficient 
notification  that  to  the  extent  indicated  in  the  proclamation 
trade  with  the  enemy  is  interdicted. 

The  unlawfulness  of  trade  with  the  enemy  extends  not  only 
to  every  place  within  his  dominions  and  subject  to  his  govern- 
ment, but  also  to  all  places  in  his  possession  or  military  occu- 
pation even  though  such  occupation  has  not  ripened  into  a 
conquest  or  changed  the  national  character  of  the  inhabitants. 
In  each  case  there  is  the  same  hazard  to  the  State,  and,  if  the 
hostile  occupation  is  known  when  the  communication  is  at- 
tempted there  is  the  same  breach  of  duty  on  the  part  of  the 
subject.  The  reasons  of  public  policy  which  forbid  such  inter- 
course apply  as  fully  in  the  one  case  as  in  the  other.  The 
same  rule  holds  even  in  the  case  of  revolted  territory  or  colony 
of  the  enemy,  which  is  known  to  have  been  for  years  in  the 
hands  of  the  insurgents.  Courts  of  justice  always  regard  such 
revolted  territory  as  belonging  to  the  enemy  until  by  some 
public  act  of  their  own  government  it  is  expressly  recognized 
as  an  independent  or  friendly  power.1 

Not  only  intercourse  and  trade  with  districts  wrested  from 
the  enemy,  but  the  entrance  there  of  all  persons  whomsoever,  is 
subject  strictly  to  regulations  established  by  the  military  com- 
mander, his  superiors  or  his  government.  Such  it  has  been  uni- 
formly held  by  the  United  States  authorities  is  the  effect  of 
military  occupation  of  enemy  country.  All  rights  of  the  oc- 
cupier rest  upon  superior  military  power.  If  necessary  he  re- 
sorts to  any  measure  justified  by  the  laws  of  war  to  maintain 
the  advantages  he  has  gained.  For  the  time  being  the  con- 
quered territory  is  his.  The  inhabitants  by  accepting  pro- 
tection to  life  and  property,  to  the  degree  at  least  to  which  it  is 
extended,  are  bound  not  to  jeopardize  his  military  interests. 
Commercial  intercourse  with  their  former  fellow-subjects  be- 
yond the  conquered  district  would  clearly  do  this.  Every  ob- 
jection to  trading  with  the  enemy  under  ordinary  circumstances 
applies  with  increased  force  here.  To  permit  it  would  weaken 
the  power  of  the  invader  and  strengthen  his  adversary  ;  facili- 

1.  Halleck,  ch.  21,  sec.  20;  Woolsey,  5th  ed.,  section  124;  Kent,  I,  68  (c) ; 
but  see  The  Hoop,  1  Rob    Rep.,  209,  for  exceptions  cited. 


230  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

ties  would  thus  be  given  for  conveying  intelligence,  maintain- 
ing correspondence  forbidden  by  the  laws  of  war,  and  would 
add  to  the  warlike  resources  of  the  enemy.  A  course  of  con- 
duct so  pregnant  with  danger  to  the  conquering  power  will  not 
be  tolerated,  and  the  measures  taken  by  the  conqueror  to  place 
upon  it  the  seal  of  his  disapprobation  will  be  correspondingly 
severe.  It  is  not  the  practice  of  military  commanders  to  deal 
gently  with  those  who,  while  accepting  the  benefits  of  a  gov- 
ernment which  in  amelioration  of  the  strict  rules  of  war  has 
been  established  over  them,  seek  to  impair  its  power  or  adhere 
to  the  enemy  giving  him  aid  and  comfort.  In  this  respect  there 
is  no  difference  in  the  situations  of  persons  inhabiting  the  ter- 
ritory militarily  occupied.  Whether  subjects  of  the  vanquished 
State  or  of  a  neutral  power  their  obligations  are  equally  strong 
to  do  nothing  to  prejudice  the  interests  of  the  government 
which  the  conqueror  establishes  over  them.  And  as  to  all  per- 
sons who  did  not  reside  or  were  not  found  in  the  territory  when 
it  was  occupied,  whatever  may  be  their  nationality,  the  con- 
queror alone  determines  upon  what  terms  if  at  all  they  shall  be 
permitted  either  to  enter  the  occupied  district  or  to  hold  com- 
munication or  business  relations  with  the  inhabitants  thereof. 
Either  to  admit  them  or  to  permit  the  intercourse  is  a  relaxa- 
tion of  the  strict  rules  of  war. 

There  are  some  exceptions  to  this  rule  of  commercial  non- 
intercourse.  Halleck  confines  them  to,  first,  the  mere  exercise 
of  the  rights  of  humanity,  and,  second,  the  trade  sanctioned  by 
license  issued  by  proper  authority  and  which  has  just  been  con- 
sidered.1 The  exceptions  to  the  rule,  Wheaton  remarks,  far 
from  weakening  its  force  confirm  and  strengthen  it.  They  re- 
solve themselves  into  cases  where  the  trading  was  with  a  neu- 
tral, or  the  circumstances  were  considered  as  implying  a  license, 
or  the  trading  was  not  consummated  until  the  enemy  had  ceased 
to  be  such.'2  Kent  mentions  also  the  case  of  ransom-bills,  which 
are  contracts  of  necessity  founded  on  a  state  of  war,  and  from 
their  very  nature  carry  with  them  evidence  of  the  fidelity  of 
the  parties  to  their  respective  governments.3  The  first  excep- 
tion mentioned  by  Halleck  is  based  upon  the  principle  laid 
down  by  Vattel  that  when  a  subject  can  neither  receive  his  sov- 
ereign's orders  nor  enjoy  his  protection  he  assumes  his  natural 

1.   Chap.  21,  sec.  2.  2.  Part  4,  sec.  315. 

3.  Vol.  1,  p.  68,  and  note  (a)  ;  7  Peters,  593. 


TRADE)    WITH    OCCUPIED    TERRITORY.  23I 

rights  and  is  to  provide  for  his  own  safety  by  any  just  and 
honorable  means  in  his  power.1  Accordingly  it  was  decided 
that  where  two  British  subjects  were  declared  prisoners  in 
France,  and  one  of  them  drew  a  bill  in  favor  of  another  on  a 
third  British  subject,  resident  in  England,  and  such  payee  en- 
dorsed the  same  in  France  to  an  alien  enemy,  it  was  held  that  the 
transaction  was  legal  and  that  the  alien's  right  of  action  was 
only  suspended  during  the  war,  and  that  on  the  return  of  peace 
he  might  recover  the  amount  from  the  acceptor  ;  for  otherwise 
such  persons  would  sustain  great  privations  during  their  de- 
tention, and  for  the  same  reason  it  was  held  that  it  is  no  objec- 
tion to  an  action  on  such  bill  that  it  is  brought  as  to  part  in 
trust  for  an  alien  enemy.2  As  to  the  exception  of  ransom-bills 
mentioned  by  Kent  it  may  be  said  that  it  was  formerly  the 
general  custom  to  redeem  property,  particularly  that  captured 
at  sea,  from  the  hands  of  the  enemy  by  ransom.  When  muni- 
cipal regulations  do  not  forbid,  such  contracts  are  undoubtedly 
valid. 

Although  contracts  entered  into  between  enemies  during  war 
are  illegal,  the  mere  fact  that  war  is  declared  between  their 
respective  governments  does  not  render  existing  contracts  void.3 
If  they  be  not  confiscated  during  the  war  the  right  to  enforce 
payment  revives  with  peace.4  And  as  the  creditor  can  not  sue 
for  his  debt  during  the  war,  the  statute  of  limitations  does  not 
run  against  him  while  the  war  lasts.5  The  rule  of  non-inter- 
course, unless  specially  so  determined  by  the  sovereign  power, 
does  not  apply  to  transactions  which  are  to  take  place  entirely 
in  the  territory  of  one  belligerent.  Therefore,  if  the  enemy 
creditor  have  an  agent  appointed  before  the  war  in  the  territory 
of  the  debtor,  payment  by  the  latter  to  such  agent  would  not 
be  unlawful.6  It  does  not  follow  that  the  agent  will  violate  the 
law  by  remitting  to  his  principal,  and  if  he  does,  he  be- 
comes responsible.  "The  rule,"  says  Mr.  Justice  Washington, 
' '  can  never  apply  in  cases  where  the  creditor,  although  a  sub- 
ject of  the  enemy,  remains  in  the  country  of  the  debtor,  or  has 
a  known  agent  there  authorized  to  receive  the  debt,  because  the 
payment  to  such  creditor  or  his  agent  could  in  no  respect  be 

1.  Bk.  3,  ch.  i6,sec.  264.  2.  6  Taunton,  237  ;   1  Marsh  Reports,  558, 

S.  C.  ;  6  Taunton,  332;  Wharton,  Conflict  of  Laws,  sec.  497. 
3.  Bluntschli,  I,  sees.  29,  30.  4   Manning,  p.  176  ;  Cobbett,  p.  10S. 

5.  6  Wallace,  532  ;  9  Wallace,  678  ;  11  Wallace,  508.  6.  9  Wallace,  72  ; 

7  Wallace,  452. 


232  MILITARY   GOVERNMENT   AND    MARTIAE   EAW. 

construed  into  a  violation  of  the  duties  imposed  by  a  state  of 
war  upon  the  debtor.  The  payment  in  such  cases  is  not  made 
to  an  enemy,  and  it  is  no  objection  that  the  agent  may  possibly 
remit  the  money  to  his  principal.  If  he  should  do  so  the 
offence  is  imputable  to  him  and  not  to  the  person  paying  him 
the  money."  ] 

The  rule  of  non-intercourse  is  based  on  public  policy,  and 
it  is  as  reasonable  as  it  is  inflexible.  Yet  we  have  just 
seen  that  the  rule,  rigorous  though  it  be,  does  not  under 
all  circumstances  taint  with  illegality  all  business-like  deal- 
ings between  those  who  legally  are  enemies.  What  then  is 
the  practical  limit  to  unlicensed  trade  which  can  not  be  passed 
without  either  rendering  the  transactions  void  or  rendering 
forfeitable  property  engaged  therein  ?  The  answer  is  be- 
lieved to  be  that  all  business  transactions,  trade,  or  commercial 
intercourse  which  is  inconsistent  with  the  state  of  war  between 
the  parties  belligerent  is  forbidden  to  their  subjects.  This  is 
the  general  statement  of  the  rule  ;  and  if  greater  particularity 
be  required  it  may  be  stated  that  it  includes  any  act  of  vol- 
untary submission  to  the  enemy,  or  receiving  his  protection  ; 
any  act  or  contract  which  tends  to  increase  his  resources,  and 
every  kind  of  trading  or  commercial  dealing  or  intercourse, 
whether  by  transmissions  of  money  or  goods,  or  orders  for  the 
delivery  of  either,  between  the  two  countries,  directly  or  in- 
directly, or  through  the  intervention  of  third  persons  or  partner- 
ships, or  by  contracts  in  any  form  looking  to  or  involving  such 
transmission,  or  by  insurances  upon  trade  by  or  with  the 
enemy.  It  was  held,  accordingly,  that  when  during  the  civil  war 
a  citizen  and  resident  of  Mississippi  made  a  lease  of  a  cotton  plan- 
tation there  to  a  citizen  of  Massachusetts  who  was  then  in  Mis- 
sissippi, the  lessee  taking  possession,  paying  rent  under  the  lease, 
but  was  afterwards  driven  off  by  the  Confederate  cavalry,  and 
action  was  brought  for  rent  in  arrear,  the  lease  was  valid.  The 
decision  was  based  on  the  consideration  that  the  lease  in  ques- 
tion was  entered  into  and  affected  property  wholly  within  the 
territorial  limits  of  one  of  the  belligerents  ;  that  it  in  no  manner 
increased  the  warlike  resources  of  one  or  diminished  those  of 
the  other  belligerent  ;  hence  the  reasons  of  public  policy  under- 
lying the  rule  had  no  applicability.  The  rule  of  non-inter- 
course as  just  given  was  laid  down  as  the  correct  one,  and  it 
was  insisted  that  further  than  this  it  did  not  extend. 


1.  1  Peters,  Circuit  Court,  496  ;  106  U.  S.,  196,  244. 


INSURRECTION   AGAINST    MILITARY    GOVERNMENT.         233 


CHAPTER  XIII. 


INSURRECTION   AGAINST    MILITARY    GOVERNMENT. 

The  experience  of  the  world  has  made  the  question  whether 
the  conquered  have  a  right  to  rise  in  insurrection  against  the 
government  of  military  occupation  a  practically  important  one. 
The  abstract  right  can  not  be  denied.  It  is  the  privilege  of  any 
people  to  change  the  existing  government  for  sufficient  cause, 
and  of  this  they  must  ultimately  be  the  judges.  Mankind  has 
always  asserted  and  maintained  the  right  to  do  this.  Military 
government  is  as  subject  to  the  rule  as  any  other.  But  as  a 
question  disassociated  from  theory  and  abstraction,  the  right 
of  insurrection  is  always  coupled  with  considerations  of  ex- 
pediency. "  Those  who  engage  in  rebellion  must  consider  the 
consequences.  If  they  succeed,  rebellion  becomes  revolution, 
and  the  new  government  will  justify  its  founders.  If  they  fail, 
all  their  acts  hostile  to  the  rightful  government  are  violations 
of  law  and  originate  no  rights  which  can  be  recognized  by  the 
courts  of  the  nation  whose  authority  and  existence  have  been 
alike  assailed. "  '  It  particularly  behooves  those  who  contem- 
plate rising  against  military  government  to  consider  well  the 
consequences.  Rebellion  is  the  highest  crime  against  govern- 
ment. Its  punishment  has  been  correspondingly  severe.  This 
being  true  of  regular  governments  based  on  the  consent  of  the 
governed,  who,  with  some  show  of  reason  may  claim  the  right 
under  changed  conditions  to  exercise  the  sovereign  power  of 
deposing  what  they  have  set  up,  how  much  more  is  it  likely  to 
prove  true  of  military  governments,  which,  so  far  as  the  con- 
quered are  concerned,  are  at  best  mere  concessions  by  the  con- 
queror from  his  extreme  rights  under  the  laws  of  war.  Ex- 
emplary- punishment  is  dealt  out  to  those  who  unsuccessfully 
rebel  against  regular  governments  ;  in  the  case  of  insur- 
gents against  military  governments  the  results  to  those  unsuc- 
cessfully involved  are  still  more  disastrous.  The  arbitrary 
character  of  the  latter  system  of  government  renders  summary 

i.  Shortridge  &  Co.  v.  Macon,  Chase's  Decisions,  136. 


234  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

punishment  easily  practicable,  and  the  circumstances  under 
which  it  is  instituted  renders  such  punishment  for  attempted  re- 
bellion particularly  necessary.  There  is  here  little  opportunity 
for  calm  judicial  determination  of  the  merits  of  the  insurgents' 
cause.  Prompt  and  unquestioned  obedience  on  the  part  of 
those  within  the  scope  of  its  authority  is  demanded  and  en- 
forced. Vigilance  to  detect  offences,  swiftness  and  certainty  in 
their  punishment,  is  the  rule  of  the  conqueror.  He  acts  on  the 
principle  that  those  who  accept  his  protection  must  give  him 
support,  or  at  least  not  scheme  against  him.  Failure  on  the 
part  of  the  people  to  heed  this  may  cause  the  conqueror  to 
revert  to  those  sterner  rights  of  belligerency  which  place  both 
the  persons  and  property  of  the  vanquished  at  his  mercy.  "  If 
the  inhabitants  of  the  occupied  territory  rise  in  insurrection," 
says  Hall,  "  whether  in  small  bodies  or  en  masse,  they  can  not 
claim  combatant  privileges  until  they  have  displaced  the  occu- 
pation, and  all  persons  found  with  arms  in  their  hands  can  in 
strict  law  be  killed,  or  if  captured,  be  executed  by  sentence  of 
court-martial.  Sometimes  the  inhabitants  of  towns  or  districts 
in  which  acts  of  the  foregoing  nature  have  been  done  or  where 
they  are  supposed  to  have  originated  are  rendered  collectively 
responsible  and  are  punished  by  fines  or  by  their  houses  being 
burned." 

Should  circumstances  render  rigorous  measures  of  repression 
necessary  the  commander  has  at  hand  the  power  promptly  to 
render  them  effective.  As  a  rule,  however,  only  the  leaders 
and  instigators  of  a  military  insurrection  are  visited  with  the 
extreme  penalty  while  the  common  people  involved  are  more 
leniently  dealt  with.  Sometimes  heavy  contributions  are  levied 
by  way  of  punishment  upon  the  place  or  district  of  country 
where  insurrection  occurs.  This  practice  is  justified  on  the 
ground,  first,  that  the  instigators  and  leaders,  being  usually  the 
originators  of  the  insurrection,  should  suffer  the  punishment 
due  to  the  offence;  and,  second,  that  in  war  a  community  is 
justly  held  responsible  for  the  unlawful  acts  of  its  members 
where  individual  offenders  can  not  be  otherwise  reached.1 

The  criminality  or  otherwise  of  military  insurrections  must 
ever  be  a  matter  of  opinion  in  each  particular  case.  As  there 
is  no  legal  tribunal  to  determine  upon  the  justice  of  a  war,   so 

i.  Tovey,  Martial  Law  and  Customs  of  War,  p.  53,  (London,  1886). 


INSURRECTION    AGAINST    MILITARY    GOVERNMENT.         235 

there  is  none  to  determine  upon  that  of  a  military  insurrection. 
If  successful,  the  world  generally  will  deem  it  to  have  been  jus- 
tifiable and  patriotic  ;  if  otherwise,  the  reverse  will  be  true. 
"  Although  the  operations  of  war,"  says  Vattel,  "are  by  cus- 
tom generally  confided  to  regular  troops,  yet  if  the  inhabitants 
of  a  place  taken  by  the  enemy  have  not  promised  or  sworn 
submission  to  him,  and  should  find  a  favorable  opportunity  of 
rising  on  the  garrison  and  recovering  the  place  for  their  sover- 
eign, they  may  confidently  presume  that  their  prince  will  ap- 
prove of  this  spirited  enterprise.  And  where  is  the  man 
that  will  dare  to  censure  it  ?  It  is  true,  indeed,  that  if  the 
townsmen  miscarry  in  the  attempt,  they  will  experience  very 
severe  treatment  from  the  enemy.  But  this  does  not  prove  the 
enterprise  to  be  unjust,  or  contrary  to  the  laws  of  war.  The 
enemy  makes  use  of  his  right,  the  right  of  arms,  which  authorizes 

NOTE. — The  following  extract  from  general  orders  issued  to  the  Prussian 
Army  in  August,  1870,  gives  a  connected  view  of  the  acts  of  the  French 
population  punished  by  the  Germans  and  of  the  penalties  attached  thereto  : 

Military  justice  is  established  by  these  presents  : 

1st.  It  will  be  applicable  to  the  whole  extent  of  French  territory  occu- 
pied by  German  troops  in  engagements  tending  to  compromise  the 
security  of  those  troops,  do  them  injury,  or  give  assistance  to  an  enemy. 

Military  jurisdiction  will  be  regarded  as  in  force  and  as  proclaimed  for 
the  whole  extent  of  a  canton  as  soon  as  it  is  published  in  any  one  of  the 
places  belonging  to  it. 

2d.  All  persons  who  do  not  make  part  of  the  French  Army  and  who  can 
not  establish  their  standing  as  soldiers  by  outward  indication,  and  who — 

(a)  Serve  the  enemy  as  spies  ; 

(b)  Who  mislead  German  troops  under  pretence  of  guides  ; 

(c)  Kill,  wound,  or  pillage  persons  belonging  to  the  German  Army  or 
making  part  of  their  train  ; 

(d)  Destroy  bridges  or  canals,  damage  telegraph  lines  or  railways,  render 
roads  impracticable,  burn  stores  (ammunition),  provisions,  or  the  quarters 
of  the  troops  ; 

(e)  Taking  arms  against  the  German  troops,  shall  be  punished  by  death. 

In  every  case  the  officer  ordering  the  trial  shall  appoint  a  military  com- 
mission intrusted  with  investigating  the  matter,  and  pronounce  sentence. 
The  councils  of  war  can  condemn  to  no  other  punishment  but  that  of 
death.     Their  sentences  shall  be  immediately  executed. 

3d.  The  communes  to  which  the  culprits  belong,  as  well  as  those  com- 
munes whose  territory  has  been  the  scene  of  the  criminal  action,  shall  be 
liable  in  every  case  to  a  fine  equal  to  the  sum  total  of  their  land  tax. 
(Hall,  International  Law,  pp.  433~'4,  note.) 


236  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

him  to  call  in  the  aid  of  terror  to  a  certain  degree,  in  order  that 
the  subjects  of  the  sovereign  with  whom  he  is  at  war  may  not 
be  willing  to  venture  on  such  bold  undertakings,  the  success  of 
which  may  prove  fatal  to  him."  '  He  then  instances  the  case 
of  the  inhabitants  of  Genoa,  who  during  the  recent  war  sud- 
denly took  up  arms  and  drove  the  Austrians  from  the  city,  re- 
marking that  the  republic  celebrated  an  annual  commemoration 
of  this  happy  event  by  which  she  recovered  her  liberty.  But  it 
can  not  be  conceded  that  the  mere  fact  that  the  inhabitants  have 
taken  an  oath  under  the  dictation  of  the  conqueror  can  impair 
the  right  to  rise  against  him.  As  Vattel  suggests,  the  oath  is 
forced  upon  them,  and  they  are  under  no  obligations  to  keep  it 
longer  than  self-interest  suggests  as  advisable.  They  have  the 
right  to  rise  if  they  wish,  but  they  must  be  prepared  to  abide 
the  consequences. 

There  are  many  examples  of  military  insurrections  and  of  the 
punishment  inflicted  on  the  insurgents,  who  as  a  rule  have  been 
put  down  with  a  firm  hand.  After  the  establishment  of  a  gov- 
ernment in  New  Mexico  by  the  military  power  of  the  United 
States,  a  general  plan  of  revolt  was  sprung  suddenly  on  the  un- 
suspecting authorities  by  which  the  civil  governor  and  many 
other  officials  newly  appointed  under  the  authority  of  the  United 
States  were  betrayed  and  murdered  under  circumstances  of 
great  atrocity.  The  inhabitants  of  California  also  rose  in  vari- 
ous places  against  the  military  government  established  over 
them,  but  with  less  sanguinary  results  than  in  New  Mexico. 
In  both  instances  the  government  of  military  occupation  con- 
tented itself  with  defeating  and  dispersing  the  insurgent  forces.2 
This  was  because  the  United  States  government  had,  as  before 
remarked,  determined  upon  a  permanent  conquest  of  these  ter- 
ritories. By  a  policy  of  forbearance  it  was  hoped  ultimately 
to  convert  the  people,  including  the  insurgents,  into  loyal 
citizens  of  the  Union.  Hence  those  severely  repressive  meas- 
ures usually  attending  the  suppression  of  military  insurrections, 
and  the  effect  of  which  is  expected  to  be  deterrent  of  future 
disturbances,  were  not  here  resorted  to. 

As  a  rule,  however,  the  means  made  use  of  to  put  down  in- 
surrections of  this  character  and  the  policy  pursued  towards  the 

1.  Book  III,  ch.  15,  sec.  2?S.  2.   Mansfield's  Mexican  War,  pp.  98-99 


INSURRECTION    AGAINST    MILITARY    GOVERNMENT.         237 

rebels  afterwards  have  not  been  conciliatory.  In  the  campaign 
of  1796,  as  a  punishment  for  the  city  of  Pavia,  whose  inhabitants 
rose  against  the  French  troops,  Bonaparte  recaptured  the  place, 
executed  the  leaders  of  the  revolt,  and  gave  the  city  up  to 
plunder.  In  1797,  four  hundred  French  soldiers  in  the  hospital 
of  Verona  were  murdered  by  Venetian  insurgents.  The  insur- 
rection was  immediately  suppressed,  its  authors  shot,  and  a 
heavy  contribution  levied  on  the  city. 

The  Sepoy  revolt,  whether  we  consider  the  vast  extent  and 
inaccessible  nature  of  the  territory  over  which  it  was  spread, 
the  number  of  the  people  involved,  and  the  fanaticism  with 
which  they  pursued  their  scheme  of  so-called  deliverance,  or 
the  atrocities  which  on  either  side  characterized  its  progress 
and  suppression,  forms  the  most  impressive  incident  in  the 
annals  of  British  India.  The  various  peoples  inhabiting  that 
peninsula  had,  one  after  another,  been  subjugated  by  the  arms 
and  diplomacy  of  Britain.  Under  carefully  considered  limit- 
ations many  natives  had  been  incorporated  into  the  British 
East  India  army.  A  confidence  mutually  to  the  advantage  of 
rulers  and  subjects  was  established.  This  feeling  was  en- 
couraged by  the  people  and  relied  upon  by  the  conquerors, 
whose  system  of  government,  however,  was  essentially  that  of 
military  occupation.  It  was  against  this  rule  of  the  foreigner 
that  the  insurrection — born  of  religious  zeal — was  directed. 
The  result  is  a  melancholy  illustration  of  the  dangers  which 
attend  such  uprisings. 

The  struggle  in  the  Spanish  Peninsula  from  1808  to  18 12  af- 
fords many  instances  of  similar  insurrections.  In  June,  1808, 
the  inhabitants  of  Cuenca,  Castile,  rose  in  arms,  and  being 
joined  by  a  force  of  7,000  or  8,000  peasants,  overpowered  and 
destroyed  a  French  detachment  left  in  that  town.  General 
Caulaincourt  was  ordered  to  suppress  the  uprising.  He  arrived 
before  the  town  early  in  July,  attacked  and  routed  the  insur- 
gents from  their  position  with  great  slaughter,  and,  the  place 
being  deserted  by  the  inhabitants,  was  given  up  to  pillage. 
The  contagion  of  revolt  was  wide-spread.  Scarcely  had  King 
Joseph,  alarmed  at  some  reverses  of  French  troops,  quitted 
Madrid  when  the  people  of  Biscay  prepared  to  rise.  In  Au- 
gust, 1 80S,  the  French  general,  Merlin,  came  down  on  the  mi- 


238  MILITARY   GOVERNMENT  AND   MARTIAL   EAW. 

fortunate  Biscayans  ;  Bilboa  was  taken,  and,  to  use  the  em- 
phatic expression  of  the  King,  "the  fire  of  insurrection  was 
quenched  with  the  blood  of  1,200  men." 

Notwithstanding  the  fact  that  Joseph  had  been  proclaimed 
King  of  Spain,  Napoleon  found  it  necessary,  during  the 
Peninsular  war,  as  we  have  seen,  to  establish  particular 
military  governments  in  numerous  provinces.  It  was  be- 
lieved to  be  essential  to  the  success  of  the  military  oper- 
ations. Against  these  there  were  popular  and  irregular  up- 
risings entailing  great  suffering  upon  the  peaceful  inhabitants, 
but  doing  little  for  Spanish  deliverance.  As  a  means  of  expel- 
ling the  invaders  it  was  totally  inefficient,  and  even  as  an  auxil- 
iary to  regular  operations  its  advantages  were  counterbalanced 
by  its  evils.  "It  is  true,"  says  Napier,  "that  if  a  whole 
nation  will  but  persevere  in  such  a  system  it  must  in  time  de- 
stroy the  most  numerous  armies.  But  no  people  will  thus 
persevere  ;  the  aged,  the  sick,  the  timid,  the  helpless,  are  all 
hinderers  of  the  bold  and  robust.  There  is  also  the  difficulty 
in  procuring  arms.  The  desire  of  ease,  natural  to  mankind, 
prevails  against  the  suggestions  of  honor,  and  although  the  op- 
portunity of  covering  personal  ambition  with  the  garb  of 
patriotism  may  cause  many  attempts  to  throw  off  the  yoke,  the 
bulk  of  the  invaded  people  will  gradually  become  submissive 
and  tranquil.  To  raise  a  whole  people  against  an  invader  may 
be  easy,  but  to  direct  the  energy  thus  aroused  is  a  gigantic 
task,  and,  if  misdirected,  the  result  will  be  more  injurious  than 
advantageous."  * 

Lord  Wellington  thought  of  reprisals  as  the  only  course 
proper  toward  the  French,  whose  alleged  cruelties  at  Santarem 
gave  rise  to  loud  complaints  from  the  inhabitants.  But  strict 
inquiry  revealed  the  fact  that  the  people,  after  having  submitted 
to  the  French  and  received  their  protection,  took  advantage  of 
every  opportunity  to  destroy  detachments  of  their  troops,  and 
that  the  cruelties  complained  of  were  retaliations  for  such  con- 
duct. Wellington,  instead  of  visiting  punishment  on  the  French 
for  such  proper  measures  on  their  part,  enjoined  the  natives  to 
cease  from  such  warfare,  which  was  conducted  on  the  simplest 
principles,  namely,  that  neither  side  gave  any  quarter. 

1.   Book  9,  ch.  1. 


INSURRECTION    AGAINST    MILITARY    GOVERNMENT.         239 

At  the  occupation  of  Strasburg  by  the  Germans  on  the  28th 
September,  1870,  after  its  capitulation,  a  Baden  soldier  was  shot  in 
a  by-street  and  another  wounded.  The  assassin  was  captured 
and  shot  on  the  spot.  General  Werder  on  hearing  of  this  ordered 
the  city  to  pay  a  contribution  of  one  million  francs,  but  this 
was  afterwards  remitted.  The  next  day  the  following  order 
was  issued  :  '  'A  state  of  siege  still  continues  ;  crimes  and  offences 
will  be  punished  by  martial  law.  All  weapons  are  immediately 
to  be  given  up.  All  newspapers  and  publications  are  forbidden 
until  further  orders.  Public  houses  to  be  closed  at  9  p.  m.; 
after  that  hour  every  civilian  must  carry  a  lantern.  The  muni- 
cipal authorities  have  to  provide  quarters,  without  food,  for  all 
men  directed  to  be  thus  supplied.1  " 

Upon  the  subject  of  good  faith  owing  by  the  inhabitants  of 
occupied  territory  to  the  military  government,  the  American 
Instructions  contain  the  following  : 

A  traitor  under  the  law  of  war,  or  a  war  traitor,  is  a  person 
in  a  place  or  district  under  martial  law  who,  unauthorized  by 
the  military  commander,  gives  information  of  any  kind  to  the 
enemy,  or  holds  intercourse  with  him. 

The  war  traitor  is  always  severely  punished.  If  his  offense 
consist  in  betraying  to  the  enemy  anything  concerning  the  condi- 
tion, safety,  operations,  or  plans  of  the  troops  holding  or  occupy- 
ing the  place  or  district,  his  punishment  is  death. 

If  the  citizen  or  subject  of  a  country  or  place  invaded  or  con- 
quered gives  information  to  his  own  government  from  which 
he  is  separated  by  the  hostile  army,  or  to  the  army  of  his  gov- 
ernment, he  is  a  war  traitor,  and  death  is  the  penalty  of  his 
offense.     (Section  5,  pars.  5,  6,  7.) 

If  the  inhabitants,  instead  of  acting  singly  or  in  isolated  small 
groups,  were  to  rise  generally  it  can  not  be  supposed  that  the 
military  government  will  stop  short  of  using  the  most  effective 
measures  to  put  down  the  insurrection.  Such  times  are  perhaps 
as  much  characterized  by  sanguinary  scenes  as  any  in  human 
experience.  The  worst  passions  are  given  full  vent,  or  it  is 
apt  to  be  so,  and  whichever  party  is  successful  the  other  is  ex- 
terminated. 

1.  Bluntschli,  I,  sec.  91,  clause  2. 


240  MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 


CHAPTER  XIV. 

RESPONSIBILITY     OF    COMMANDERS — MILITARY    GOVERNMENT. 

The  powers  of  commanders  enforcing  military  government 
are  derived  from  and  are  limited  by  the  laws  of  war.  In  this 
regard  it  matters  not  whether  the  territory  governed  be  foreign 
or  that  of  rebels  treated  as  belligerents.  In  the  exercise  of  his 
authority  under  the  laws  of  war,  however,  the  commander  is 
subject  to  the  control  of  his  military  superiors,  while  both  he 
and  they  are  amenable  to  and  governed  by  the  supreme  power 
in  the  State.  In  case  of  civil  war  the  course  of  the  legitimate 
government  will  be  determined  by  considerations  of  policy.  It 
is  not  bound  to  treat  the  rebels  as  though  they  were  subjects  of 
a  foreign  power ;  in  other  words,  concede  them  belligerent 
rights.  Still,  in  modern  times,  it  is  the  usual  practice  in  civil- 
ized governments,  attacked  by  organized  and  formidable  rebel- 
lion, to  exercise  and  concede  those  rights.1 

If  the  military  occupation  be  of  foreign  territory,  there  will, 
as  a  rule,  be  no  reason  for  complicating  the  governmental  ma- 
chinery there  with  powers  or  functions  which  are  not  purely 
military.  The  times  are  turbulent  ;  war  lays  its  hand  heavily 
on  all  within  the  field  of  operations.  Society  amidst  such 
scenes  is  quickly  reduced  to  its  fundamental  elements — a  people 
asking  only  to  be  governed  and  protected  in  person  and  prop- 
erty, and  a  ruling  power  of  sufficient  vigor  and  strength  to  afford 
that  protection.  For  such  a  condition  of  society  the  indis- 
pensable elements  of  government  are,  or  should  be,  swiftness 
of  action,  impartiality  in  meting  out  justice  how  stern  soever  it 
be,  and  overwhelming  force.  These  qualities  attach  peculiarly 
to  a  government  of  military  power  conducted  alone  by  military 
officers.  Whatever  of  civil  government  is  maintained  is  author- 
ized and  controlled  by  the  military  power  ;  nor  does  it  extend 
at  the  utmost  further  than  conducting  the  affairs  of  society  in 
its  ordinary  every-day  transactions. 


1.  Chase's  Decisions,  p.  141 


RESPONSIBILITY   OF    COMMANDERS.  241 

If  the  military  occupation  be  of  territory  reclaimed  from 
rebels,  treated  as  belligerents,  the  policy  of  the  legitimate  gov- 
ernment may  extend  beyond  mere  military  control.  The 
people  are  still  subjects  of  the  conquering  power,  although  tem- 
porarily alienated  from  the  path  of  duty.  It  may  be  the  part 
of  wisdom,  therefore,  to  endeavor  through  conciliatory  meas- 
ures to  recall  them  to  their  allegiance,  and  such,  in  modern 
times,  has  generally  been  the  practice  of  the  sovereign  State. 
One  of  the  most  effective  measures  to  this  end  would  be 
gradually  to  restore  the  people  to  the  enjoyment  of  civil  and 
religious  liberty  in  so  far  as  this  is  compatible  with  the  paramount 
object  of  conquering  a  peace.  As  the  rebellious  territory  is 
held  by  force  alone,  whatever  is  done  must  be  done  under  the 
protection  of  the  military.  Without  this  no  civil  government 
set.  up  by  the  dominant  State  would  stand  its  ground  an  hour. 
The  power  behind  the  throne  is  the  same  as  when  dominion  is 
exercised  over  foreign  territory,  but  the  throne  preferably  is 
rilled  by  another  and  milder  personage  than  the  military  con- 
queror— one  whose  mission  it  is  to  hold  out  the  olive  branch 
while  the  sword  appears  in  the  background,  grimly  suggestive, 
it  is  true,  )Tet  to  be  used  only  in  case  other  measures  fail. 

In  the  United  States  all  military  and  naval  officers  are  sub- 
ject to  the  orders  of  the  President.  In  him  is  vested  the  exec- 
utive power  of  the  nation.  They  are  his  agents  appointed  on 
his  nomination  to  make  that  power  effectual  for  all  the  warlike 
purposes  of  government.  This  embraces  the  control  of  con- 
quered enemy  territory,1  which  is  directly  entrusted  to  these 
officers.  They  remain  subject  to  superior  military  control, 
but  aside  from  this  their  authority  is  limited  only  by  the  laws 
of  war.  "  When  the  armies  of  the  United  States  are  in  enemy's 
country,  officers  and  soldiers  are  answerable  only  to  their  own 
government,  and  only  by  its  laws  as  enforced  by  its  armies 
can  they  be  punished."2  "The  commanding  general  deter- 
mines under  such  circumstances,"  says  the  Supreme  Court, 
' '  what  measures  are  necessary  unless  restrained  by  the  orders 
of  his  government,  which  alone  is  his  superior."  3  And  speak- 
ing of  the  seizure  of  private  property  found  in  territory  subject 

1.   Kent,  I,  92  (b)  ;  20  Wallace,  394.  2.  97  U.  S.,  515  ;  100  U.  S., 

i65-'6  ;  101  U.  S.,  17-18.  3.  97  U.  S  ,  60. 


242  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

to  military  government,  it  remarked  that  if  the  property  were 
taken  by  an  officer,  when  by  the  laws  of  war  or  the  proclama- 
tion of  the  commanding  general  it  should  have  been  exempt 
from  seizure,  the  owner  could  have  complained  to  that  com- 
mander, who  might  have  ordered  restitution  or  sent  the  offending 
party  before  a  military  tribunal  as  circumstances  required,  or 
he  could  have  had  recourse  to  the  government  for  redress.1 

The  question  has  sometimes  arisen  how  far  the  hostile  act  of 
a  subordinate  officer,  as  for  instance,  the  governor  of  a  province, 
is  to  be  regarded  as  the  act  of  his  sovereign  or  State,  and  how  far 
the  officer  is  to  be  held  individually  responsible.  The  most  ap- 
proved and  reasonable  doctrine  is  that  if  the  act  be  ratified  by 
his  government,  or  rather  is  not  disclaimed,  the  State  is  respon- 
sible ;  otherwise  it  becomes  an  individual  act  and  the  guilty 
party  should  be  surrendered  up  for  punishment.  The  general 
is  not  responsible  to  other  governments  than  his  own.  His 
government  deals  with  others  upon  terms  of  equality,  for  neither 
acknowledges  any  superior  ;  he  stands  behind  his  own  for  pro- 
tection. 

It  may  be  considered  as  established  by  the  authorities,  first, 
that  the  commander  administering  military  government  is  re- 
sponsible to  his  superiors  and  to  his  government  for  the  man- 
ner in  which  he  performs  that  duty  ;  second,  his  government 
may  disavow  his  actions,  and,  strictly,  this  would  render  him 
personally  responsible  for  violations  of  the  laws  of  war  ;  but, 
in  general,  while  reprobating  his  conduct,  it  will  itself  seek  to 
make  suitable  reparation  to  the  opposing  belligerent  and  deal 
directly  with  its  servant,  the  commander,  as  the  facts  of  the 
case  may  warrant ;  third,  if  the  government  assume  responsi- 

1.  100  U.  S.,  167  ;  2  Exchequer  Reports,  188. 
Note. — An  instance  somewhat  of  this  kind  occurred  in  the  Peninsular 
campaign  in  1810-11.  The  Spanish  General,  Meudizabel,  committed  many 
excesses  in  Portugal,  and  the  disputes  between  Spanish  troops  and  Portu- 
guese people  were  pushed  so  far  that  the  former  pillaged  the  town  of 
Fernando  ;  while  the  Portuguese  government,  in  reprisal,  meant  to  seize 
the  Spanish  fortress  of  Oliveuza.  which  had  formerly  belonged  to  them. 
The  Spanish  regency  publicly  disavowed  General  MendizabePs  conduct, 
while  nothing  short  of  the  strenuous  exertions  of  the  common  ally,  the 
English,  prevented  Portugal  declaring  war  against  Spain  because  of  the 
conduct  of  the  Spanish  commander.  (Napier's  History  of  the  Peninsular 
War,  book  XII,  ch.  V.) 


RESPONSIBILITY    OF   COMMANDERS.  243 

bility  for  his  conduct,  as  in  any  case  it  may  do,  the  opposing 
belligerent  can  then  look  only  to  that  government  for  any  re- 
dress to  which  it  may  deem  itself  entitled  because  of  alleged 
crimes  or  irregularities  perpetrated  by  the  military  commander. 
Nor  in  general  will  it  be  a  matter  of  indifference  to  the  com- 
mander whether  he  be  held  personally  or  officially  responsible. 
If  the  former,  he  is  at  once  stripped  of  any  immunity  due  to  his 
official  position  and  becomes  answerable,  like  any  other  citizen, 
to  the  municipal  laws  for  his  actions  ;  if  the  latter,  his  conduct 
is  brought  to  the  test  of  the  laws  and  customs  of  war  and  by 
that  standard  will  it  be  judged.  In  the  one  case  a  taking  of 
property  and  human  life  which  possibly  would  be  looked  upon 
as  robbery  and  murder  might  in  the  other,  when  judged  by  mili- 
tary rules,  be  fully  justified  as  a  lawful  exercise  of  belligerent 
rights.1 

We  come  now  to  treat  more  particularly  of  the  responsibility 
to  individuals  of  officers  upon  whom  devolves  the  duty  of  in- 
stituting military  government  and  carrying  it  into  execution. 
And  certainly  no  part  of  this  subject  possesses  more  interest 
than  this,  nor  is  any  more  important.  .  Contrary  to  a  very 
general  belief  it  will  be  found,  when  attentively  considered, 
that  military  government,  arbitrary  though  it  be  in  its  essential 
features,  is  far  from  being  the  mere  will  of  the  commanding 
general  to  be  enforced  by  him  without  responsibility,  either 
directly  or  through  the  medium  of  subordinates  who  themselves 
are  answerable  only  to  that  commander.  His  responsibility  is 
both  military  and  civil ;  the  former  complete,  the  latter  quali- 
fied by  circumstances. 

First,  responsibility  to  military  superiors  extends  wherever 
commanders  may  go.  How  extensive  soever  may  be  their 
operations,  how  far  soever  conducted  from  the  territory  of  their 
own  government,  they,  and  of  course  their  subordinates  as 
well,  are  never  independent  of  that  authority  which  sent  them 
forth.  In  monarchical  governments  the  king  or  emperor  is  the 
fountain  of  military  honor,  the  source  of  military  power,  the 
dispenser  of  military  justice.  "The  king,"  says  Blackstone, 
' '  is  considered  as  the  generalissimo,  or  the  first  in  military 
command  within  the  kingdom.     The  great  need  of  society  is  to 

I.  Halleck,  chap.  14,  sec.  31  ;  97  U.  S.,  623. 


244  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

protect  the  weakness  of  individuals  by  the  united  strength  of 
the  community,  and  the  principal  use  of  government  is  to  di- 
rect that  united  strength  in  the  best  and  most  effectual  manner 
to  answer  the  end  proposed.  Monarchical  government  is  al- 
lowed to  be  the  fittest  of  any  for  this  purpose.  It  follows,  there- 
fore, from  the  very  end  of  its  institution  that  in  a  monarchy 
the  military  power  must  be  trusted  in  the  hands  of  the  prince."  ' 
Without  joining  in  this  eulogium  of  a  system  of  government 
to  which  the  great  common-law  commentator  was  naturally  so 
partial,  it  may  be  observed  with  truth  and  candor  that  the  re- 
pository of  military  command,  emolument  or  preferment,  is, 
under  all  permanent  governments,  equally  as  with  the  monarchi- 
cal, in  the  hands  of  the  chief  executive. 

In  Republics,  of  which  the  United  States  may  be  taken  as  a 
representative,  the  President,  as  commander-in-chief  of  the  mili- 
tary forces  of  the  nation,  is  the  director  of  its  military  power 
on  land  and  sea.  Upon  him  devolves  the  duty  of  conducting 
campaigns.  To  do  this  successfully  he  must  have  the  cheerful 
support  of  all  subordinate  military  commanders.  In  his  hands 
must  be  entrusted  the  necessary  coercive  power  to  command 
that  support,  even  though  this  involves  the  adoption  of  sum- 
mary measures.  In  him  is  vested  authority  to  call  all  officers 
to  account,  whether  they  be  directing  armies,  or  presiding  over 
territory  wrested  from  the  enemy,  or  their  duties  are  a  combi- 
nation of  these.  If  this  were  not  so,  they  might  defy  him  on 
the  most  critical  occasions.  This,  however,  they  may  not  do. 
Governments  republican  in  form  no  more  than  monarchies  are 
so  weak  that  the  assembling  of  armies  and  the  holding  in  sub- 
jection conquered  territory  will  throw  their  vital  members  out 
of  joint.  It  is  at  such  times  less  than  any  other  that  the  au- 
thority of  the  Executive  may  be  brought  into  contempt.  Ac- 
cordingly, in  time  of  war  the  President  is  vested  with  the  power 
of  summary  dismissal  of  officers,  than  which  no  more  effectual 
instrumentality  could  be  devised  for  the  maintenance  of  proper 
discipline.  From  the  President  downwards  the  chain  of  subor- 
dination extends  unbroken  to  the  extremities  of  the  military 
system,  binding  the  parts  thereof  into  a  homogeneous,  compact 
whole.     It  is  this  alone  which  renders  the  success  of  military 

i.  Bk.  i,  p.  262. 


RESPONSIBILITY   OF    COMMANDERS.  245 

measures  practicable.  This  is  discipline,  which  is  equally  in- 
dispensable whether  invoked  amidst  the  clash  of  arms  or  the 
quieter  yet  onerous  task  of  governing  firmly  yet  equitably 
under  the  laws  of  war  a  district  subjected  to  the  rule  of  a  con- 
queror. 

It  is  true  that  to  the  subjugated  people  the  conqueror  is  not ' 
under  legal  responsibility  for  his  conduct.  He  is,  however, 
under  obligations  to  keep  inviolate  the  implied  covenant  with 
them  that,  so  long  as  they  do  not  take  sides  either  openly  or 
covertly  with  his  enemy,  he  will  protect  them  so  far  as  the  ex- 
igencies of  the  military  service  will  permit  in  their  rights  of 
person  and  property. 

Although  members  of  the  invading  army  are  not  and  can  not 
be  made  answerable  before  either  the  courts  or  other  local 
authorities,  the  legality  of  their  acts  may  become  matter  for 
judicial  determination  as  between  citizens,  residents  of  the 
territory,  who  are  affected  by  these  acts.  If  the  conqueror,  or 
members  of  his  army  during  military  occupation  alienate  the 
property  of  a  citizen,  for  instance,  and  it  comes  into  the  posses- 
sion of  another,  the  question  might  arise  before  the  local  tri- 
bunal whether  or  not  such  alienation  were  legal,  and  conse- 
quently passed  title.  This  was  frequently  the  case  during  the 
civil  war  and  subsequently  in  States  which  had  been  declared 
to  be  in  a  state  of  insurrection.  As  was  to  be  expected  under 
such  circumstances,  the  decisions  of  courts  were  diverse.  But 
as  the  war  progressed  and  the  principles  which  govern  in  civi- 
lized warfare  became  better  understood,  the  test  generally  ap- 
plied was  this  :  Was  the  original  alienation  or  appropriation 
done  agreeably  to  the  laws  of  war  ?  If  so,  the  person  into 
whose  possession  the  property  passes  holds  by  an  indefeasible 
title  ;  if  otherwise,  it  is  not  rightfully  his. 

In  L,ewis  versus  McGuire,  for  instance,  the  court  remarked  : 
"  Neither  the  right  of  imprisonment  nor  the  right  to  exact  mili- 
tary contributions  belongs  to  every  petty  officer,  but  must 
come  from  the  commander  of  the  district  of  country,  or  a  post, 
or  an  army,  and  not  from  every  straggling  squad  which  may  be 
under  the  command  of  some  inferior  officer  of  low  grade.  Nor, 
indeed,  will  either  the  commission  or  capacity  in  which  an 
officer  professes  to  act  fix  his  status,  but  the  manner  of  his 
conduct,  for  even  a  regularly-commissioned  officer  in  the  regular 


246  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

military  service  of  a  belligerent  may  be  guilty  of  such  a  line  of 
conduct  as  to  show  that  he  in  reality  belonged  to  an  irregular, 
irresponsible,  plundering  service,  which  can  not  be  shielded  by 
a  regular  commission."1  This  language  was  cited  approv- 
ingly in  Brauner  v.  Felkner,2  which  involved  the  case  of  a 
private  soldier  appropriating  the  horse  of  a  citizen,  which  was 
afterwards  found  in  the  possession  of  another  citizen  of  the 
occupied  territory.  The  court  decided  that  the  original  owner 
was  entitled  to  reclaim  his  property,  as  under  the  laws  of  war 
even  a  private  soldier  without  orders  from  competent  authority 
can  not  rightfully  appropriate  enemy  property.  In  Bowles  v. 
L,ewis,3  a  provost  marshal  of  the  United  States  seized  and  sold  a 
horse  of  a  citizen  of  that  part  of  the  State  of  Missouri  which 
was  under  military  control.  The  horse  was  afterwards  found 
in  possession  of  the  defendant,  and  the  owner  was  permitted  to 
recover  possession.  The  court  remarked  :  "In  order  to  protect 
a  sale  under  such  circumstances,  by  a  provost  marshal,  under 
color  of  military  authority,  the  claimant  under  such  sale  must 
show  that  the  property  was  sold  under  some  valid  condemna- 
tion or  judgment,  or  that  its  seizure  and  sale  was  authorized  by 
the  usages  of  war  ;  otherwise,  the  action  of  the  provost  marshal 
was  a  mere  trespass." 

It  will  be  observed  that  acts  which  officers  may  be  guilty  of 
rendering  them  punishable  may  be  divided  into  two  classes  : 
first,  those  within  the  rules  of  war,  but  which  are  not  author- 
ized or  assumed  by  their  government;  and,  second,  acts  in  vio- 
lation of  the  laws  of  war.  The  former  are  punishable  by  the 
rules  of  the  civil  law,  while  the  latter  being  offences  against  the 
law  of  nations  are  cognizable  only  under  the  laws  and  usages 
of  war. 

Every  nation  determines  for  itself  how  it  will  regard  the  acts 
of  its  military  officers.  Unquestionably  the  general  rule  is  to 
sustain  them.  In  no  other  way  can  they  be  brought  to  act 
boldly  for  the  Sta'.e.  The  few  exceptions  make  more  clear  the 
generality  of  this  rule,  founded  as  it  is  on  the  soundest  policy. 
The  soldier  who  is  to  strike  effectively  against  his  country's 

1.  3  Bush  (Ky.),  203-'4.  2.   1  Heiskell  (S.  C,  Tenn  ). 

3.  48  Mo.,  32  ;  see  Dana's  Wheaton,  sec.  359  ;  see  Vattel,  book  3,  ck.  9, 

sec.  161. 


RESPONSIBILITY   OP  COMMANDKRS.  247 

foes  must  not  dread  an  enemy  at  the  rear  more  dangerous  to 
his  fame  and  success  than  the  braver  one  in  front.  Govern- 
ments appreciate  this  fact,  and  therefore  generally  sustain  the 
commanders  of  their  forces  in  all  their  belligerent  measures. 

On  the  other  hand  nothing  is  more  common  or  more  natural, 
perhaps,  than  for  the  enemy  to  distort  even  necessary  and  recog- 
nized measures  of  regular  warfare,  when  executed  rigorously, 
into  infractions  of  its  rules.  War  can  not  be  carried  on  success- 
fully without  a  sacrifice  of  life  and  property.  It  brings  misery 
to  all  alike,  combatant  and  non-combatant,  the  innocent  and 
guilty,  within  the  sphere  of  its  operations.  It  is  not  surprising 
that  those  who  feel  the  effects  of  measures  necessarily  harsh, 
brought  home  to  them  in  their  own  persons,  should  loudly 
inveigh  against  the  cruelty  of  the  authors  of  their  discomfort. 
Nevertheless,  it  is  a  dangerous  proceeding  to  proclaim  that  the 
enemy  has  violated  the  laws  of  war  and  then  attempt  to  visit 
upon  him  that  summary  punishment  which,  granting  this  to 
be  true,  he  may  deserve. 

The  case  of  bandits,  guerrillas,  and  irregular  partisans,  who 
are  apparently  peaceful  citizens  one  hour  and  stealthy  assassins 
the  next,  who  have  no  distinctive  uniform  and  whose  acts  partake 
of  the  character  of  murder  and  robbery  rather  than  of  warfare 
regularly  waged,  is  not  here  considered  ;  their  proper  treatment 
when  captured  has  been  referred  to  elsewhere.1  What  is  referred 
to  here  is  the  attempt,  sometimes  made  by  a  belligerent,  to  stamp 
the  acts  of  an  opposing  general  with  the  seal  of  lawlessness  un- 
worthy a  civilized  commander,  and  then  exhort  its  subjects  to 
visit  vengeance  upon  him  or  his  army  at  the  first  opportunity. 
Such  was  the  proclamation  of  the  President  of  the  so-called 
Confederate  States  of  America,  dated  December  23,  1862,  de- 
nouncing the  punishment  of  death  by  hanging  against  a 
general  commanding  one  of  the  Union  armies,  and  further  de- 
claring that  all  commissioned  officers  belonging  to  that  army 
should,  when  captured,  be  reserved  for  execution.2  No  at- 
tempt was  made  to  carry  the  injunctions  of  this  sanguinary  in- 
strument into  execution.  To  have  done  so  would  have  served 
no  good  purpose.  Retaliation  with  all  its  deplorable  results 
would  inevitably  have  been  the  consequence. 

1.  Ante,  pp.  83-'4.  2.  R.  R.  S.,  1,  vol.  15,  pp.  906-7. 


248  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

Most  personal  actions  are  transitory  and  may  be  tried  in  any 
country  at  the  option  of  the  plaintiff,  provided  that  jurisdiction 
of  the  parties  be  secured.  Blackstone  divides  personal  actions 
into  two  classes,  ex  contractu  and  ex  delicto ;  the  former  are 
founded  on  contracts,  and  embrace  all  actions  on  debts  or 
promises  ;  the  latter  upon  torts  or  wrongs,  such  as  trespasses, 
nuisances,  assaults,  defamatory  words,  and  the  like.1 

From  what  has  before  been  observed  as  to  liability  in  transi- 
tory actions,  it  results  from  this  classification  that  to  both  bona 
fide  neutrals  who  preserved  this  character  scrupulously  and  also 
subjects  of  the  dominant  State  residing  by  its  authority  in  terri- 
tory under  military  government,  military  commanders  in  the  ocL 
cupied  district  may  be  held  responsible  before  the  civil  tribunals 
of  their  own  country  for  breaches  of  contract  and  also  for  torts. 
As  to  contracts,  the  well  known  distinction  between  public  and 
private  agents  in  the  matter  of  personal  responsibility  will  not 
be  lost  sight  of.  If  an  agent  on  behalf  of  government  make  a 
contract  and  describe  himself  as  such,  he  is  not  personally 
bound  even  if  the  terms  of  the  contract  be  such  as  might  in  a 
case  of  a  private  nature  involve  him  in  a  personal  obligation. 
The  reason  of  the  distinction  is  that  it  is  not  to  be  presumed 
that  a  public  agent  meant  to  bind  himself  individually  for  the 
government ;  and  the  party  who  deals  with  him  in  that  char- 
acter is  justly  supposed  to  rely  upon  the  good  faith  and  un- 
doubted ability  of  the  government.  But  the  agent  in  behalf  of 
the  public  may  still  bind  himself  by  an  express  agreement,  and 
the  distinction  terminates  in  a  question  of  evidence.  The 
inquiry  in  all  the  cases  is,  to  whom  was  the  credit,  in  the 
contemplation  of  the  parties,  intended  to  be  given  ?  2  As  to  ac- 
tions ex  contractu,  therefore,  it  may  be  assumed  that  the  naked 
right  will  seldom  if  ever  find  practical  illustration.  Govern- 
ment agents  are  not  likely  to  be  so  neglectful  of  their  own  in- 
terests as  to  engage  in  transactions  on  behalf  ot  the  public 
which  will  involve  them  in  personal  liabilities. 

With  regard  to  actions  ex  delicto  the  case  is  different.  The 
liability  to  incur  legal  responsibility  of  this  nature  hy  the  mili- 
tary is  much  greater.     The  conditions  under  which  military 

1.  Commentaries,  3,  p.  117.  2.  Kent,  2,  p.  633;  5  Baruewall  and 

Alderson's  Rep.,  34  ;  Bouvier  Dictionary,  vol.  1,  p.  137- 


RESPONSIBILITY   OF    COMMANDERS.  249 

government  is  enforced  are  not  those  best  calculated  to  secure 
a  nice  adjustment  of  private  rights.  Public  interests  must  first 
be  attended  to.  Nothing  which  places  in  jeopardy  the  success 
of  military  operations  is  tolerated.  The  prosecution  of  the  wai 
to  a  happy  issue  is  the  object  of  paramount  importance.  All 
other  interests  give  way  to  that  consideration.  These  are  fa- 
miliar principles.  Yet  they  do  not  mean  license  ;  the  reckless 
disregard  of  the  rights  of  private  parties  who,  pursuant  to 
governmental  authorit5r,  and  therefore  in  a  proper  manner,  are 
found  together  with  their  property  in  enemy  territory,  under 
military  government. 

The  law  as  laid  down  in  Mitchell  v.  Harmony  by  the  Su- 
preme Court  of  the  United  States  is  decisive  as  to  the  responsi- 
bility of  military  officers  for  torts  committed  in  enemy  territory 
against  the  persons  and  property  of  subjects  either  living  or 
temporarily  there  under  proper  authority.1  To  properly  under- 
stand this  case  it  is  necessary  that  all  the  circumstances  under 
which  it  arose  should  be  taken  account  of.  When  war  had 
been  determined  on  with  Mexico  the  United  States  gov- 
ernment resolved  to  penetrate  the  enemy's  country  by  three 
lines.  On  the  left,  General  Taylor  was  to  move  from  the  lower 
Rio  Grande  ;  in  the  center,  General  Wool  to  move  into  the 
state  of  Chuihuahua,  Mexico,  from  San  Antonio,  Texas ; 
while  on  the  right,  General  Kearney  invaded  California  by  way 
of  New  Mexico.  Having  reached  Santa  Fe  and  received  the 
submission  of  New  Mexico,  the  latter  general  detached  a  col- 
umn under  command  of  Colonel  Doniphan,  First  Missouri 
Volunteers,  to  penetrate  the  state  of  Chuihuahua  in  such  a  man- 
ner as  to  make  a  diversion  in  Wool's  favor.  Accompanying 
Doniphan's  command  was  the  2d  Missouri  Volunteers  com- 
manded by  Lieutenant-Colonel  Mitchell,  the  same  who  was  sub- 
sequently the  plaintiff  in  error  in  the  case  before  the  Supreme 
Court.  The  enemy  was  met  on  the  way,  but  defeated  Decem- 
ber 21,  1846,  and  finally  Doniphan  reached  and  took  possession 
of  Fort  San  Eleasario  at  El  Paso  del  Norte  on  the  upper  Rio 
Grande.  Here  the  commander  of  the  expedition  first  heard  of 
the  failure  of  the  center  column  to  reach  Chuihuahua.  It  became 
then  a  grave  question  what  course  should  be  pursued.     In  every 

1.    13  Howard,  115,  et.  seq 


250  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

direction  was  enemy  country,  and  either  to  advance,  retreat,  or 
stand  still  seemed  extremely  perilous.  The  bold  resolution  was 
taken,  however,  of  penetrating  to  the  city  of  Chuihuahua,  which 
was  successfully  accomplished,  although  enemies  vastly  more 
numerous  had  first  to  be  met  and  vanquished.  This  accom- 
plished, the  column  turning  to  the  left  joined  General  Taylor, 
thus  terminating  a  daring  exploit  which  could  but  do  honor 
to  the  arms  which  accomplished  it. 

While  the  column  was  at  Fort  San  Eleasario  the  most  alarm- 
ing events  happened  in  its  rear.  In  pursuance  of  a  plot  formed 
and  successfully  carried  into  execution,  nearly  all  the  officials 
of  the  temporary  government  which  General  Kearney  had  es- 
tablished over  New  Mexico  were  murdered  by  Mexicans,  who, 
ostensibly,  had  submitted  to  the  authority  of  the  United  States. 
The  result  of  this  act  of  perfidy  no  one  could  foresee,  but  it  de- 
prived the  expedition  of  even  a  semblance  of  a  base  of  opera- 
tions.    It  was  then  resolved,  as  before  mentioned,  to  advance. 

It  was  when  starting  from  San  Eleasario  and  thence  during 
the  progress  to  Chuihuahua  that  Lieutenant-Colonel  Mitchell 
committed  the  tort  for  which  the  Supreme  Court  afterwards 
held  him  liable  in  damages.  There  was  present  with  the  com- 
mand a  Mr.  Harmony,  a  citizen  of  New  York,  who,  in  the 
capacity  of  trader,  and  before  he  knew  that  there  was  to  be 
a  war,  had  left  Independence,  Missouri,  for  Santa  Fe  with  a 
large  train  laden  with  goods  and  merchandise  destined  for 
New  Mexico.  Ventures  of  this  nature  were  then  encouraged 
by  the  United  States  government.  The  train  was  overtaken 
by  General  Kearny's  army  of  invasion,  but  was  permitted  to 
accompany  one  of  its  columns  to  Santa  Fe,  and  Harmony  was 
given  permission  to  dispose  of  his  wares  to  natives  and  others, 
in  the  regular  course  of  such  business.  When  Doniphan's  ex- 
pedition was  fitted  out,  Harmony  sought  and  obtained  permis- 
sion to  accompany  it.  He  did  this  not  to  add  to  the  security  of 
the  column,  which  his  presence  really  weakened,  but  for  pur- 
poses of  trade.  He  was  present  with  the  entire  approbation  of 
the  United  States  authorities  on  the  spot.  He  was  there  to 
make  money  by  selling  the  products  of  the  United  States  to  the 
people  of  the  country,  and  it  accorded  with  the  policy  of  his 
government  that  such  commercial  intercourse  should  be  fos- 
tered. He  had  full  authority  for  being  there,  and  for  the  pur- 
pose that  brought  him  there. 


RESPONSIBILITY    OP    COMMANDERS.  25 1 

But  he  did  not  wish  to  accompany  the  army  beyond  San 
Eleasario.  He  saw  an  opportunity  to  dispose  of  his  wares  in 
that  vicinity,  or  if  not,  he  imagined  he  saw  in  the  perils  of  the 
journey  to  Chuihuahua  under  the  existing  circumstances  greater 
danger  to  his  pecuniary  interests  than  were  likely  to  result 
from  his  remaining  behind  in  the  midst  of  Mexicans,  with 
whom,  however,  he  was  on  excellent  terms,  and  whose 
language  he  perfectly  understood.  It  was  claimed  afterwards 
on  the  trial  that  he  was  at  this  time  meditating  schemes  which 
were  hostile  to  the  cause  of  his  country,  and  through  the  agency 
of  what  he  claimed  was  legitimate  traffic  with  the  Mexicans 
he  was  really  giving  the  enemy  aid  and  comfort.  But  the 
Supreme  Court  in  its  final  decision  said  that  there  was  no  sub- 
stantial proof  that  he  was  actuated  by  these  motives  ;  it  treated 
this  surmise  as  a  vague  suspicion,  which  could  not  even  under 
circumstances  then  existing  be  legally  made  the  foundation  of 
action  inimical  to  Harmony's  interests. 

Colonel  Doniphan  gave  orders  that  Harmony  should  accom- 
pany the  command  in  its  further  career  of  conquest.  The  attend- 
ing to  the  details  of  securing  this  were  entrusted  to  Lieutenant- 
Colonel  Mitchell,  who  afterwards  claimed,  no  doubt  truthfully, 
that  he  had  acted  under  Doniphan's  orders  in  the  premises,  but 
whom  the  court  found  had  moved  with  a  degree  of  zeal  in  the 
matter  considerably  in  excess  of  what  a  plain  matter  of  fact 
obedience  of  orders  would  have  necessitated.  The  lieutenant 
colonel  gave  to  Harmony  a  memorandum  stating  the  reasons 
for  this  action,  which  were  :  First,  that  it  was  desired  to  make 
use  of  the  wagons  and  bales  of  goods  to  form  a  field-work  in  the 
event  of  the  troops  being  attacked  by  an  overwhelming  force  of 
the  enemy  ;  second,  it  was  desired  to  make  use  of  the  services 
of  the  American  teamsters  whom  the  commander  of  the  forces 
had  armed  and  organized  as  an  infantry  battalion  numbering 
nearly  three  hundred  men  ;  third,  it  was  desirable  to  prevent 
the  large  amount  of  property  in  Harmony's  wagons  from  fall- 
ing into  the  hands  of  the  enemy,  because  it  would  have  aided 
him  in  paying  and  equipping  his  troops. 

There  is  no  doubt  but  that,  so  organized,  the  trader's  train 
and  employes  formed  an  important  element  of  strength  when, 
en  route  from  San  Eleasario  to  Chuihuahua,  the  American 
troops  met,  and  February  28,  1847,  decisively  defeated  a  vastly 


252  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

superior  force  of  Mexicans  at  Sacramento  ;  the  result  of  the 
conflict  being  the  opening  up  an  uninterrupted  path  to  Chui- 
huahua,  the  capital  of  the  hostile  state  of  that  name,  and 
which  was  the  objective  point  of  the  expedition. 

The  city  being  reached,  permission  was  given  Harmony  to 
sell  the  goods  and  merchandise,  but  the  people  were  hostile 
and  he  could  not  do  it.  Much  of  his  property,  especially 
wagons  and  animals,  had  been  either  rendered  unserviceable 
or  totally  destroyed.  He  declined  to  accept  what  was  left  when 
the  American  commander  offered  to  turn  it  over  to  him,  prefer- 
ring to  abandon  the  whole  to  those  who  had  taken  forcible  pos- 
session of  it  and  seek  whatever  redress  might  be  available  to 
him  through  the  agency  of  the  law.  First,  he  attempted  to  se- 
cure reimbursement  through  an  act  of  Congress  ;  but  the  bill 
for  that  purpose  in  the  usual  course  having  been  referred  to 
the  Secretary  of  War,  the  Honorable  William  L.  Marcy,  for  an 
opinion  upon  its  merits,  was  returned  with  an  adverse  report 
which  sealed  its  fate  in  that  direction,  for  the  time  being  at 
least,  and  left  the  civil  courts  the  only  means  of  relief. 

The  cause  came  on  for  a  hearing  before  the  circuit  court  of 
the  United  States,  Nelson,  J.,  presiding,  for  the  October  term, 
1850,  at  New  York  city.1  The  defences  set  up  were  four  : 
First,  that  at  the  time  of  the  seizure  Harmony  was  engaged  in 
an  unlawful  trade  with  the  public  enemy  ;  second,  the  seizure 
was  to  prevent  the  property  from  falling  into  the  hands  of  the 
enemy;  third,  the  property  was  taken  for  the  public  use;  fourth, 
that  the  plaintiff  was  estopped  from  claiming  damages  for  the 
seizure  because  he  had  subsequent  to  this  received  back  the 
property  from  the  military  officers.  It  may  be  well  to  remark 
that  the  government  supported  Mitchell's  views  of  the  case, 
the  United  States  district  attorney  defending  him. 

The  trial  was  before  a  jury  whose  province,  as  explained  by  the 
court,  was  the  determination  of  the  facts,  while  the  court  ex- 
pounded and  applied  the  law.  Nearly  all  the  defences  were 
rejected  with  emphasis,  while  those  for  which  it  was  conceded 
there  was  color  of  reason  were  pronounced  too  insufficiently 
supported  to  relieve  the  defendant  from  liability  in  damages. 

1.  Harmo"y  v.  Mitchell,   1  Blatchford.  549. 


RESPONSIBILITY    OF   COMMANDERS.  253 

It  was  held,  first,  that  the  goods  of  a  trader,  who,  encouraged 
by  the  governmental  authorities  to  carry  on  a  particular  kind 
of  commercial  intercourse  with  the  enemy  had  penetrated  a 
subjugated  country,  were  not  liable  to  seizure  on  the  ground 
that  such  trading  was  unlawful.  It  would  be  setting  a  snare 
for  the  unwary  ;  an  act  not  to  be  attributed  to  the  government 
or  the  Executive  Department  without  the  most  convincing 
proof;  second,  to  justify  the  seizure  of  property  so  situated  on 
the  ground  that  such  seizure  was  necessary  to  prevent  its  falling 
into  the  enemy's  hands  as  booty  of  war,  the  danger  must  be 
imminent  and  urgent,  not  contingent  or  remote.  It  was  for  the 
jury  to  say  after  duly  weighing  all  the  facts  of  the  case,  whether 
the  danger  was  of  this  pressing  nature  ;  third,  while  a  military 
officer  is  justified  in  a  case  of  extreme  necessity,  when  danger  is 
impending,  when  the  safety  of  the  government  or  the  army 
requires  it,  in  taking  private  property  for  the  public  service, 
without  being  liable  as  a  trespasser,  it  is  necessary  that  these 
circumstances  should  conspire  to  relieve  him  from  responsibility 
for  the  act.  When  this  is  so  the  owner  of  the  property  must 
look  to  the  government  for  indemnity.  On  the  other  hand,  if 
private  property  be  thus  appropriated,  not  on  account  of  im- 
pending danger  at  the  time  or  for  use  to  repel  an  immediate 
assault  of  the  enemy  which  might  endanger  the  safety  of  the 
army,  but  for  the  strengthening  the  army  and  aiding  in  an  ex- 
pedition against  an  enemy  two  hundred  miles  distant,  the  mili- 
tary officer  would  be  a  trespasser,  and  the  liability  would  at- 
tach at  the  instant  of  seizure  ;  fourth,  if  the  superior  officer  who 
gives  the  order  for  seizure  is  not  justified,  the  subordinate  who 
executes  it  will  not  be. 

In  delivering  the  decision  of  the  court  Mr.  Justice  Nelson 
said  :  "I  have  no  doubt  of  the  right  of  a  military  officer  in  case 
of  extreme  necessity,  for  the  safety  of  the  government  and  of 
the  army,  to  take  private  property  for  public  use.  The  officer 
in  command  of  an  army  upon  its  march,  if  it  were  in  danger 
from  a  public  enemy,  would  have  the  right  to  seize  the  prop- 
erty of  a  citizen  and  use  it  to  fortify  himself  against  assault, 
while  the  danger  existed  and  was  impending,  and  ordinarily  the 
seizer  would  not  be  a  trespasser.  The  safety  of  the  country  is 
paramount,  and  the  rights  of  individuals  must  yield  in  case  of 
necessity.     *    *     *     There  was  no  evidence  here  of  an  impend- 


254  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

ing  peril  to  be  met  and  overcome  by  the  public  force,  but  the 
goods  were  taken  for  a  different  purpose." 

On  appeal  to  the  Supreme  Court  of  the  United  States  the 
judgment  of  the  circuit  court  was  affirmed,  the  decision  being  de- 
livered by  the  chief  justice  1  There  are,  it  was  observed,  without 
doubt  occasions  in  which  private  property  may  lawfully  be 
taken  possession  of  or  destroyed  to  prevent  it  from  falling  into 
the  hands  of  the  enemy,  and  also  where  a  military  officer 
charged  with  a  public  duty  may  impress  private  property  into 
the  public  service,  or  take  it  for  public  use.  The  court  were 
clearly  of  opinion  that  in  all  these  cases  the  danger  must  be 
immediate  or  the  necessity  urgent  for  the  public  service, 
such  as  did  not  admit  of  delay,  and  where  the  action  of  the 
civil  authority  would  be  too  late  in  providing  the  means 
which  the  occasion  called  for.  It  is  impossible  to  define  the 
particular  circumstances  of  danger  or  necessity  in  which  this 
power  may  be  lawfully  exercised.  Every  case  must  depend 
upon  its  own  circumstances.  It  is  the  emergency  that  gives 
the  right,  and  the  emergency  must  be  shown  to  exist  before  the 
taking  can  be  justified.  In  deciding  upon  this  necessity,  how- 
ever, the  state  of  the  facts  as  they  appeared  to  the  officer  at  the 
time  he  acted  must  govern  the  decision,  for  he  must  necessarily 
act  upon  the  information  of  others  as  well  as  his  own  obser- 
vation. And  if  with  such  information  as  he  had  a  right  to  rely 
upon  there  is  reasonable  ground  for  believing  that  the  peril  is 
immediate  and  menacing,  or  the  necessity  urgent,  he  is  justi- 
fied in  acting  upon  it,  and  the  discovery  afterwards  that  it  was 
false  or  erronerous  will  not  make  him  a  trespasser.  But  it  is 
not  sufficient  to  show  that  he  exercised  an  honest  judgment 
and  took  the  property  to  promote  the  public  service  ;  he  must 
show  by  proof  the  nature  and  character  of  the  emergency  such 
as  'he  had  reasonable  grounds  to  suppose  it  to  be,  and  it  is  then 
for  the  jury  to  say  whether  it  was  so  pressing  as  not  to  admit 
of  delay  and  the  occasion  such,  according  to  the  information 
on  which  he  acted,  that  private  rights  must  for  the  time  give 
way  to  the  common  and  public  good. 

In  the  particular  case  before  the  court  the  question  was 
whether  the  law  permits  private  property  to  be  taken  to  insure 

i.  Mitchell  v.  Harmony,  13  Howard,  115. 


RESPONSIBILITY    OF    COMMANDERS.  255 

the  success  of  any  enterprise  against  a  public  enemy  which  the 
commanding  officer  may  deem  it  advisable  to  undertake.  And 
the  court  was  very  clear  that  the  law  did  not  permit  it.  It  was 
remarked  that  if  the  power  exercised  by  Colonel  Doniphan  had 
been  within  the  limits  of  a  discretion  confided  to  him  by  law, 
his  order  would  have  justified  his  subordinate,  the  defend- 
ant in  the  original  suit,  even  if  the  commander  had  abused  his 
power  or  acted  from  improper  motives. 

This  decision  was  based  doubtless  upon  what  was  and  is  the 
common  law.  The  doctrine  of  Mitchell  v.  Harmony  was  re- 
ferred to  with  approbation  by  the  Supreme  Court  of  the  Urited 
States  in  an  important  case  growing  out  of  the  civil  war.1  Un- 
der the  circumstances  which  were  assumed  to  have  surrounded 
Lieutenant-Colonel  Mitchell,  that  doctrine  now  may  be  con- 
sidered the  law  of  the  land  except  as  modified  by  statutory 
enactment. 

It  is  important  that  the  import  of  this  doctrine  be  clearly  un- 
derstood. It  is  this  :  military  commanders  even  in  enemy's 
country  seize  upon  the  private  property  of  their  fellow-subjects 
at  their  peril.  Stripped  of  embellishments,  this  decision  of  the 
court  warns  such  commanders  that  measures  affecting  the  pri- 
vate property  of  citizens  of  the  commanders'  own  country,  un- 
dertaken to  insure  the  success  of  enterprises  upon  which  they 
are  engaged,  may  be  reviewed  by  a  jury  sitting  years  after  the 
event,  thousands  of  miles  from  the  theatre  of  that  strife  which 
gave  rise  to  those  measures.  Further,  that  the  commanders 
may  be  mulcted  in  damages  if  the  jury  does  not  view  the  at- 
tending circumstances  as  giving  rise  to  the  same  necessity  for 
action  that  they,  the  commanders,  did  when  on  the  spot  and 
compelled  to  act.  All  the  explanations  which  the  court  make, 
and  the  limitations  they  think  fit  to  impose,  do  not  impair  in 
the  least  the  force  and  cogency  of  the  main  idea,  namely,  that 
under  the  conditions  mentioned,  a  jury  sitting  in  another 
country  may  be  the  ultimate  judge  of  the  necessity  of  military 
measures.  It  may  be  that  this  is  necessary  ;  that  the  property 
rights  of  the  citizen  are  so  sacred  that  if  a  jury  in  its  wisdom 
so  wills  they  must  be  vindicated  even  at  the  sacrifice  of  its 
armies  in  foreign  lands.  As  it  is  the  law  all  good  soldiers  bow 
before  the  decree. 

1.  Dow  v.  Johnson,  100  U.  S.,  166. 


256  MILITARY   GOVERNMENT    AND    MARTIAL    TAW. 

When,  sixteen  years  after  Doniphan's  expedition,  General 
Grant  made  his  flank  march  which  resulted  in  the  isolation 
and  capture  of  the  rebel  armies  at  Vicksburg,  severing  the  Con- 
federacy and  dealing  a  mortal  stroke  to  rebellion  in  the  west, 
his  army  was  accompanied  by  civilian  traders  who  were  there 
by  governmental  authority  with  their  wares  and  merchandise, 
as  certainly  private  property  as  were  those  of  Harmony  in  the 
instance  just  mentioned.  As  is  well  known,  parts  of  this  army 
were  at  various  times  straightened  for  supplies.  Suppose  the 
commanding  general,  having  Lieutenant-Colonel  Mitchell's 
experience  in  mind,  had  hesitated  to  take  them  when  the  oc- 
casion in  his  opinion  demanded  the  appropriating  these  stores 
to  the  use  of  his  troops,  because  on  some  future  day  at  some 
distant  spot  when  the  war  existed  only  in  memory,  a  jury 
should  disagree  from  him  as  to  the  necessity  that  existed  for 
his  action,  and  a  United  States  court  sentence  him  to  pay  the 
full  value  of  the  property  thus  taken,  with  interest  from  date  of 
seizure,  — what  might  have  been  the  termination  of  that  historic 
campaign — what  the  fate  of  its  great  projector  and  sagacious 
executor  ?  What  would  have  been  thought  of  such  halting 
conduct  ?  He  might  have  adopted  this  course  in  view  of 
Mitchell's  fate,  and  a  timid  general  probably  would  have  done 
it.  Yet  if  in  his  judgment  the  taking  was  rendered  neces- 
sary by  the  exigencies  of  service,  not  to  have  seized  the  goods 
and  supplies  would  have  been  deemed  an  unpardonable  sin  by 
the  Executive  Department  of  the  government  and  the  country  ; 
while  if  he  could  not  justify  the  act  to  a  jury  sitting  in  judg- 
ment on  the  case  under  such  circumstances  as  to  give  them  at 
best  but  an  imperfect  appreciation  of  the  facts  as  they  appeared 
to  the  commanding  general,  he  would  be  judicially  condemned. 
Hard  indeed  may  be  the  lot  of  the  commander  placed  thus 
under  two  independent  masters,  antagonistic  in  their  constitu- 
tion, universally  so  in  their  views,  perhaps  in  his  case  in 
their  demands,  and  either  of  which  can  crush  him  at  will.  Still 
under  our  Constitution  and  laws  such  responsibility  seems  to 
be  necessary.  Not  to  hold  commanders  to  such  accountability 
might  lead  to  reckless  disregard  of  private  rights,  totally  sub- 
versive of  the  due  protection  of  the  citizen  under  a  free  govern- 
ment. 


RESPONSIBILITY    OF    COMMANDERS.  257 

It  being  conceded,  therefore,  on  the  one  hand,  that  such  dual 
responsibility  is  necessary  to  the  security  of  the  citizen,  and  on 
the  other  that  its  too  rigid  enforcement  is  calculated  to  deter 
commanders  from  executing  bold  enterprises,  which,  happily 
consummated,  will  be  of  lasting  benefit  to  the  cause  they  are  in- 
tended to  serve,  it  is  apparent  that  the  rights  of  private  persons 
are  not  alone  to  be  considered,  but  that  commanders  called 
upon  to  act  in  emergencies  are  to  receive  in  the  discharge  of 
delicate  and  onerous  duties  every  protection  which  comports 
with  a  due  regard  for  both  private  rights  and  the  public  weal. 

There  is  no  difficulty  regarding  the  principle  of  responsibility 
here  involved,  which  is  clearly  stated  in  the  language  of  the 
chief  justice  before  quoted  ;  the  difficulty  arises  in  the  applica- 
tion of  the  principle.  If  the  emergency  of  immediate  and  im- 
pending danger,  such  as  will  not  admit  of  delay,  is  shown  to 
have  existed,  the  taking  is  justified  ;  the  state  of  facts  as  they 
appear  to  the  commander  must  govern  the  decision,  and  if  he 
had  reasonable  grounds  for  his  belief  it  is  sufficient ;  the  dis- 
covery afterwards  that  the  grounds  of  such  belief  were  erroneous 
does  not  affect  his  liability.1  Thus  far  the  theory  of  the  law  is 
reasonable,  even  liberal,  towards  the  officer.  It  is  through  the 
other  branch,  which  places  in  the  breasts  of  a  jury  the  determi- 
nation of  the  sufficiency  of  the  emergency  arising  out  of  the 
facts  established  in  evidence,  that  the  binding  force  of  the  rule 
is  brought  home  to  him. 

There  are  two  primary  difficulties  in  the  application  of  the 
principle,  both  of  which  militate  against  the  commander.  The 
first  is  the  almost  impossibility  of  implanting  in  the  minds  of 
the  jury  a  correct  knowledge  of  all  the  facts  and  circumstances 
which  prompted  him  to  take  the  action  he  did  ;  the  second  is 
that  conceding  these  faithfully  reproduced,  the  jury  being  civil- 
ians unused  to  weighing  the  various  considerations  including 
sometimes  mere  suspicious  which  determined  that  action,  can 
at  best  and  even  with  every  desire  to  do  what  is  right  and  just 
in  the  premises,  but  imperfectly  appreciate  the  environments  of 
the  commander  at  the  time.  If  they  have  not  that  knowledge, 
or  if  they  do  not  understand  its  bearings  in  a  military  point  of 
view,  there  may  be  a  miscarriage  of  justice. 

1.  Mitchell    v.  Harmony,   13    Howard,  115;  Hare,  Constitutional  Law,  v. 
2,  p.  917. 


25  8  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

With  due  respect  it  is  believed  that  the  case  of  Mitchell  v. 
Harmony  furnishes  a  notable  illustration  of  this.  ' '  The  ques- 
tion here  is, ' '  say  the  court,  ' '  whether  the  law  permits  private 
property  to  be  taken  to  insure  the  success  of  any  enterprise 
against  a  public  enemy  which  the  commanding  officer  may 
deem  it  advisable  to  undertake."  l  This  assumes  that  the  ex- 
pedition to  Chuihuahua  was  originated  by  Colonel  Doniphan 
and  pursued  upon  his  own  authority.  This  does  not  accord 
with  the  facts.  The  conquest  of  Chuihuahua  was  a  prominent 
part  of  the  governmental  plan  for  the  invasion  of  Mexico. 
Colonel  Doniphan's  expedition  was  sent  into  the  enemy's 
country  by  General  Kearney,  the  commander  of  one  of  the 
main  forces  of  invasion,  for  the  purpose  of  facilitating  the  suc- 
cess of  the  deliberately  adopted  policy  of  the  government  for 
the  prosecution  of  the  war.  The  general  here  discharged  not 
only  a  military  but  a  patriotic  duty.  Colonel  Doniphan  was  at 
San  Eleasario  in  pursuance  of  proper  orders  issued  by  his  su- 
perior officer.  The  expedition  which  carried  him  there  and 
which  conducted  him  thence  to  Chuihuahua  was  set  on  foot  by 
that  superior  officer.  It  was  Doniphan's  duty  to  obey  his  in- 
structions. When  at  San  Eleasario  he  learned  of  the  failure  of 
General  Wool's  column  to  penetrate  the  enemy's  territory  by 
the  line  originally  assigned  it,  the  gravity  of  his  position  became 
apparant  and  he  fully  appreciated  it.  With  a  sanguinary  re- 
bellion in  his  rear,  trackless  and  unknown  deserts  of  appar- 
ently boundless  extent  on  either  hand,  and  an  enemy  superior 
in  force  in  front,  the  stoutest  heart  might  have  quailed  at  the 
prospect.  The  situation  was  such  that  it  was  impossible  for 
Colonel  Doniphan  to  receive  instructions  from  his  superiors. 

In  the  new  condition  of  things  resulting  from  the  failure  of 
Wool's  column  to  advance  on  the  line  assigned  it,  the  uprising 
in  New  Mexico,  the  full  extent  of  which  was  not  understood, 
but  concerning  which  the  worst  might  well  be  feared,  it  was  in- 
cumbent on  him  to  determine  what  course  to  pursue.  Upon 
well-recognized  principles  he  was  vested,  under  such  circum- 
stances, with  a  military  discretion.  He  was  to  decide  ;  no 
other  could  do  it  for  him.  Happily  for  the  credit  of  his 
country's  arms,  though  unfortunately  for  him  and  his  subordi- 

I.   13  Howard,  p.  134. 


RESPONSIBILITY   OF    COMMANDERS.  259 

nates,  his  courage  was  equal  to  the  emergency.  He  resolved 
the  perplexing  difficulties  which  beset  his  path  by  adopting  the 
boldest,  and  as  events  proved  at  the  same  time  the  safest,  course. 
He  pushed  forward  to  the  objective  point  contemplated  in  his 
original  instructions  although  deprived  of  that  assistance  from 
other  quarters  upon  which  those  instructions  were  predicated. 
The  fact  that  no  enemy  in  overwhelming  force  was  in  the  im- 
mediate vicinity  did  not  relieve  the  situation  of  the  character 
of  a  pressing  emergency  which  in  a  pre-eminent  degree  it  was. 
For  hundreds  of  miles  in  every  direction,  friends  there  were 
none  ;  while  the  country,  but  little  known,  was  inhospitable, 
barren,  and  but  sparsely  settled.  A  few  small  towns  here  and 
there  dotted  the  streams,  but  their  inhabitants  were  implacable 
enemies  with  whom  the  assassin's  stilletto  was  a  more  favorite 
and  successful  weapon  of  warfare  than  the  sword.  The  rebel- 
lion and  assassinations  in  New  Mexico  presented  the  inhabitants 
of  the  entire  hostile  territory  in  a  new  and  unfavorable  light, 
namely,  that  of  conspirators  whose  promises  to  the  face  are 
fair,  but  made  only  to  lull  their  conquerors  into  a  state  of 
fancied  security  and  then  stab  them  in  the  back.  Trade  with 
them,  which  before  this  event  might  properly  have  been  en- 
couraged, could  now  well  be  interdicted  until  it  was  certainly 
known  how  far  the  disaffection  had  spread  its  baleful  influence. 
It  was  for  Colonel  Doniphan  to  judge  regarding  this  in  his  own 
immediate  vicinity.  The  danger  that  beset  and  compassed  his 
command  was  imminent,  the  exigency  was  urgent,  and  to  meet 
the  occasion  promptly  and  effectively  was  a  pressing  duty.  If 
the  actual  state  of  facts  surrounding  Colonel  Doniphan  at  the 
time  did  not  authorize  the  forcible  employment  of  every  means 
at  hand,  the  pressing  into  service  whatever  contributed  to  the 
security  of  the  troops,  or  which  would  serve  to  extricate  them 
from  surrounding  perils,  it  is  difficult  to  conceive  of  circum- 
stances which  would  justify  that  course. 

Such  was  the  state  of  facts  existing  when  Harmony's  wagons 
and  teams  were  taken,  his  goods  seized  upon,  his  employes 
drafted  into  the  military  service,  and  he  himself  compelled,  or 
unwillingly  constrained  to  accompany  the  troops.  And  it  was 
for  aiding,  abetting,  and  being  the  active  instrumentality  in  en- 
forcing this  invasion  of  private  rights  that  Dieutenant-Colonel 
Mitchell  was  subsequently  assessed  in  damages  to  an  amount 


260  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

exceeding  one  hundred  thousand  dollars.  This,  notwithstand- 
ing the  defence  set  up  which  the  foregoing  narrative  shows  was 
not  colorable,  but  truthful.  Nor  should  it  be  forgotton  that 
the  seizing  officer  in  this  instance  had,  throughout  this  contro- 
versy, both  the  moral  and  legal  support  of  the  Executive  De- 
partment of  the  government.  Harmony's  claim  to  remunera- 
tion was  rejected  as  inadmissible  by  the  greatest  jurist,  perhaps, 
who  has  occupied  the  position  of  Secretary  of  War  ;  while,  as 
before  mentioned,  the  United  States  attorney  defended  and  jus- 
tified the  seizure  before  the  courts. 

In  delivering  the  opinion  the  chief  justice  cited  the  case  of 
Captain  Gambier  of  the  Royal  Navy,  who  acting  under  the 
admiral's  orders,  and  because  the  owners  carried  on  an  annoy- 
ing liquor  traffic  with  the  sailors  of  the  fleet,  destroyed  a  number 
of  shanties  on  the  coast  of  Nova  Scotia,  for  which  act,  being 
sued  in  the  courts  of  England,  he  was  severely  mulcted  in  dam- 
ages. But  the  cases  in  their  essential  and  determining  features 
are  not  analogous.  The  captain  proceeded  on  the  principle  of 
convenience  summarily  to  abate  a  nuisance  ;  there  was  no  press- 
ing necessity,  no  imminent  peril,  no  great  exigency  that  had  to 
be  met  without  delay.  Whatever  inconvenience  resulted  from 
the  acts  of  these  evil-disposed  citizens  could  easily  have  been 
remedied  by  restraining  the  sailors  who  misbehaved,  a  minor 
incident  of  discipline  which  occurs  frequently  in  military  life. 
For  some  reason  such  measures  did  not  seem  sufficiently  severe 
to  Captain  Gambier,  who  preferred  to  cut  up  the  evil  by  the 
roots  by  extirpating  the  nefarious  business.  But  in  so  doing 
he  clearly  invaded  private  rights.  The  measures  requisite  to 
the  maintenance  of  a  proper  discipline  in  their  forces  are  placed  by 
law  in  the  hands  of  military  officers,  and  they  have  no  more 
right  than  civilians  to  go  beyond  the  limits  of  their  authority 
to  destroy  the  property  of  subjects  because  it  might  tend  to  the 
preservation  of  better  order  among  the  troops.  That  was  what 
Captain  Gambier  did  ;  that  the  mistake  he  made  ;  but  it  is  ap- 
prehended that  the  unprejudiced  will  see  but  little  similarity 
between  that  case  and  the  case  of  Lieutenant-Colonel  Mitchell. 

It  is  clear  that  Harmony's  private  property  was  taken  for 
public  use.  It  does  not  impair  the  potency  of  this  fact  that  all 
the  wagons,  animals,  and  goods  were  not  worn  out  in  the  mili- 
tary service ;  they  were  lost  to  him  through  the  acts  of  the 


RESPONSIBILITY   OF   COMMANDERS.  26 1 

military  officers;  therefore,  he  was,  unless  moral  turpitude  tainted 
his  acts  and  impaired  his  rights,  entitled  to  just  compensation.1 
Conspiracy  with  the  enemy,  or  even  strongly  suspicious  cir- 
cumstances indicating  it,  if  proved,  defeat  all  claims  to  consid- 
eration. It  is  not  known,  however,  that  this  was  seriously 
alleged,  though  something  of  the  kind  was  hinted  at  on  the 
trial.  It  is  not  known  upon  what  grounds  Harmony's  claim  to 
compensation  was  opposed  by  the  War  Department.  Justice 
and  fair  dealing  would  seem  to  counsel  that  the  government 
having  had  the  benefit  of  the  property,  the  owner,  unless  crimi- 
nal conduct  impaired  his  rights,  was  entitled  to  be  paid  for  it. 

The  principle  of  responsibility  involved  in  this  case  is  identi- 
cal with  that  of  the  Messrs.  Porter  set  forth  in  the  opinion  of 
Attorney-General  Bates,  April  25,  1861.3  Here  the  property  of 
traders  who  were  en  route  from  the  States  to  Salt  Lake,  Utah, 
the  theatre  of  the  Mormon  rebellion,  and  consisting  of  wagons, 
animals,  and  merchandise,  were  appropriated  for  or  pressed  into 
the  service  of  the  United  States  by  General  A.  S.  Johnson,  com- 
manding the  army.  If  there  was  any  distinction  between  the 
cases  the  necessity  which  impelled  Colonel  Doniphan  to  act 
was  the  more  pressing — the  circumstances  of  peril  being  far 
greater  than  those  surrounding  General  Johnson.  That  the 
Porters  should  not  have  been  permitted  to  trade  with  the  rebel- 
lious Mormons  is  evident ;  but  that  any  paramount  military 
necessity  existed  for  appropriating  the  property  to  further  the 
plans  of  government  was  a  different  question.  This,  however, 
was  done,  only  in  this  instance  the  military  officer  was  not  con- 
sidered a  trespasser.  "It  is  not  denied,"  says  the  attorney 
general,  "  by  anybody  that  the  facts  make  out  a  strong  case 
against  the  government  for  compensation  for  these  losses,  for  it 
is  evident  that  the  order  of  General  Johnson  and  the  military 
control  established  and  maintained  by  him  over  this  train, 
which  we  have  seen  was  the  cause  of  this  loss,  were  the  wise 
and  proper  precautions  of  an  officer  to  protect  his  own  force  and 
prevent  his  enemy  from  being  strengthened."  3 

Without  remedial  legislation  the  position  of  both  property 
owners  and  military  officers  in  these  and  all  similar  cases  was 
one  of  great  hardship,  calculated  to  work  injustice.     The  former 

1.  5th  Amendment,  Constitution  U.  S.  2.   10  Opinions,  21. 

3.  Ibid.,  22-'3. 


262  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

had  either  to  seek  redress  in  damages  through  the  courts  or  turn 
to  Congress  for  compensation — the  first  involving  all  the  delays 
and  expenses  incident  to  making  out  a  case  of  trespass  under 
the  strict  rules  of  law  ;  the  second,  the  at  least  equal  delay  and 
expense  attendant  upon  securing  legislative  aid.  To  the  officer 
it  meant  the  annoyance  and  expense  of  a  civil  suit,  and  ulti- 
mately, perhaps,  being  held  liable,  because  at  the  trial  he  could 
not  justify  measures  taken  in  the  field  by  those  technical  rules 
which  were  intended  only  for  a  forum  erected  for  determining 
causes  arising  under  widely  different  circumstances. 

Section  2  of  the  act  of  March  3,  1849,  remedied  this  dif- 
ficulty, at  least  partially.  The  provisions  of  this  law  extended 
in  application  to  horses,  mules,  oxen,  wagons,  carts,  boats, 
sleighs,  or  harness  belonging  to  private  citizens,  and  provided 
for  compensation  to  the  owners,  (1)  where  the  property  was 
captured  or  destroyed  by  the  enemy,  (2)  where  abandoned 
or  destroyed  by  order  of  the  commander,  (3)  where  the  loss  re- 
sulted from  the  failure  of  the  government  to  furnish  forage, 
and  (4)  where  the  loss  resulted  from  unavoidable  accident ;  but 
in  all  these  cases  it  was  essential  that  the  property  should  have 
been  in  the  military  service  of  the  United  States  either  by  im- 
pressment or  contract ;  that  the  loss  should  have  occurred  by 
no  fault  of  the  owner,  and  that  it  should  have  occurred  while 
the  property  was  actually  employed  in  the  service.  Claims  to 
compensation  so  arising  were  to  be  adjusted  by  the  third  auditor 
of  the  Treasury,  under  rules  prescribed  by  the  Secretary  of 
War  under  the  direction  or  with  the  assent  of  the  President  of 
the  United  States,  and  the  certificate  of  the  auditor  was  suf- 
ficient warrant  for  payment  at  the  Treasury.  The  law,  being 
remedial  in  its  nature,  was  so  construed  as  to  advance  the 
remedy.  Consequently  the  adjustment  of  the  claims  of  those 
coming  within  its  rather  narrow  terms  was  simplified  and 
greatly  expedited.  If  the  property  was  impressed  into  the  ser- 
vice it  was  necessary  to  furnish  the  evidence  of  the  officer  by 
whom  the  impressment  was  made,  showing  when  and  where  it 
was  done,  by  what  authority  and  under  whose  order,  the 
reasons  therefor,  and  whether  at  the  time  it  was  lost  or  de- 
stroyed it  was  actually  employed  in  the  service  of  the  United 
States.  By  section  5,  act  of  March  3d,  1863,  the  provisions  of 
the  act  of  1849  quoted  were  made  applicable  to  steamboats  and 


RESPONSIBILITY   OF   COMMANDERS.  263 

other  vessels  and  railroad  engines  and  cars  when  destroyed  or 
lost  under  the  circumstances  described  in  the  last  mentioned 
act.1 

By  act  approved  February  24,  1855, 2  the  Court  of  Claims  was 
established.  It  was  for  the  triple  purpose  of  relieving  Con- 
gress from  the  burden  of  examining  into  the  merits  of  indi- 
vidual claims  for  compensation,  of  protecting  the  government 
by  regular  investigation,  and  of  benefiting  private  parties  by 
affording  a  certain  mode  for  having  their  private  demands 
adjusted.  The  court  was  required  to  hear  and  determine  upon 
claims  founded  upon  any  law  of  Congress  or  upon  any  regula- 
tion of  an  executive  department,  or  upon  any  contract  express 
or  implied  with  the  Government  of  the  United  States.3  And 
while  under  the  rulings  of  the  Court  of  Claims  the  government 
is  liable  for  refusing  to  receive  and  pay  for  what  it  has  agreed 
to  receive  and  purchase,  it  is  not  liable  on  implied  assumpsit 
for  the  torts  of  its  officers  committed  while  in  the  service  and 
apparently  for  its  benefit.4  The  act  of  July  2,  1864,  provided 
that  the  jurisdiction  of  the  Court  of  Claims  should  not  extend 
to  any  demand  against  the  United  States  growing  out  of  the  de- 
struction or  appropriation  of  or  damage  to  property  by  the  army 
or  navy  engaged  in  the  suppression  of  the  rebellion.5 

In  the  exercise  of  his  power  to  institute  and  carry  military 
government  into  execution  the  commander  is  entitled  to  greatest 
consideration  both  when  judging  of  the  motives  which  prompted 
him  to  act  and  the  necessity  which  existed  for  the  measures  he 
adopted.  The  presumption  is  that  he  has  properly  made  use  of 
his  authority.  His  is  a  position  in  which  swiftness  of  action 
may  be  the  only  safety.  He  can  not  always  wait  for  legal  evi- 
dence before  taking  his  measures.  An  honest  exercise  of  dis- 
cretion in  the  performance  of  his  military  duty  will  not  render 
him  liable  to  be  treated  as  a  trespasser.6  In  the  first  in- 
stance he  alone  must  decide  upon  all  questions  arising  ;  he 
alone  has  the  needful  knowledge  of  facts,  and  he  is  bound  to 
exercise  his  judgment  upon  them.  No  officer  who  is  given  a 
discretion  in  the  performance  of  his  public  duties  is  punishable 
because  his  judgment  differs  from  that  of  others.  The  question 
is,  did  he  use  the  discretion  reasonably,  and  honestly  intend  to 

1.  Chapter  78.  2.   10  Stat,  at  Lg.,  12.  3.   13  Wallace,  136. 

4.  8  Wallace,  269.         5.  Chap.  225.         6   18  Howard,  123  ;  12  Howard,  390. 


264  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

do  his  duty.  If  so,  and  the  subject-matter  for  determination  be 
within  his  discretion,  he  can  not  be  held  responsible  because  in 
the  light  of  subsequent  events  that  judgment  was  at  fault. 

"Whenever,"  said  the  Supreme  Court  of  Massachusetts, 
"the  law  vests  in  an  officer  or  magistrate  a  right  of  judgment 
and  gives  him  a  discretion  to  determine  the  facts  on  which  such 
judgment  is  to  be  based,  he  necessarily  exercises  within  the 
limits  of  his  jurisdiction  a  judicial  authority.  So  long  as  he 
acts  within  the  fair  scope  of  his  authority  he  is  clothed  with  all 
the  rights  and  immunities  which  appertain  to  judicial  tribunals 
in  the  discharge  of  their  appropriate  functions.  Of  these  none 
is  better  settled  than  the  wise  and  salutary  rule  of  law  by 
which  all  magistrates  and  officers  even  when  exercising  a 
special  and  limited  jurisdiction  are  exempt  from  liability  for 
their  judgments,  or  acts  done  in  pursuance  of  them,  if  they  do 
not  exceed  their  authority,  although  the  conclusions  to  which 
they  arrive  are  false  and  erroneous.  The  grounds  of  their  judg- 
ments can  not  be  inquired  into,  nor  can  they  be  held  responsi- 
ble therefor  in  a  civil  action.1  This  protection  and  immunity 
are  essential  in  order  that  the  administration  of  justice  and  the 
discharge  of  important  public  duties  may  be  impartial,  inde- 
pendent, and  uninfluenced  by  fear  of  consequences.  And  they 
are  the  necessary  result  of  the  nature  of  judicial  power.  It 
would  be  most  unreasonable  and  unjust  to  hold  a  magistrate 
liable  for  the  lawful  and  honest  exercise  of  that  judgment  and 
discretion  with  which  the  law  invests  him,  and  which  he  was 
bound  to  use  in  the  discharge  of  his  official  duties.  Nor  would 
there  be  any  safe-guard  or  security  to  the  magistrate  or  other 
officer  against  liability,  however  careful  and  discreet  he  may  be 
in  exercising  his  authority,  if  his  judgments  were  to  be  ex- 
amined into  and  revised  in  ulterior  proceedings  against  him  in 
the  light  of  subsequent  events,  upon  new  evidence,  and  with 
different  means  of  forming  conclusions  from  those  upon  which 
he  was  required  to  act  in  the  performance  of  his  duty.  Such 
an  ex  post  facto  judgment  might  be  more  sound  and  wise,  but 
it  would  not  be  a  just  or  proper  standard  by  which  to  try  the 
opinions  and  conduct  of  an  officer  acting  at  a  different  time  and 
under  other  circumstances.     Especially  is  this  true  where  a 

1.  2  Gray,   120;   Ibid.,  410 ;  12  Howard,  390;   7  Howard,  89;   1  Abbott, 
2i2-'45  ;   12  Wheatou,  19;  12  Peters,  516. 


RESPONSIBILITY   OF   COMMANDERS.  265 

public  officer  is  compelled  to  act  promptly  and  in  a  pressing 
emergency."  l 

In  its  application  to  military  men  this  principle  is  equally 
well  established,  whether  the  authority  for  this  action  be  found 
in  the  statute  or  the  common  law  of  war.  In  proper  cases 
within  its  scope  the  latter  is  equally  as  potent  as  the  former. 
Its  agents  are  equally  protected  in  the  discharge  of  their  duties- 
It  is  proper  that  it  be  so.  The  officer,  civil  or  military,  who 
acts  under  the  authority  of  statutory  law  generally  has  time  for 
reflection,  and  opportunity  more  or  less  extensive  to  examine 
into  the  necessity,  propriety,  and  bearing  of  measures  which  he 
may  be  called  upon  to  adopt.  If,  therefore,  he  is  protected 
while  acting  within  the  sphere  of  his  authority,  in  the  manner 
before  indicated,  so  much  the  more  should  be  the  commander 
who  on  the  theatre  of  active  military  operations  must  take 
measures  regarding  matters  which  arise  upon  the  instant  and 
which  do  not  admit  of  delay. 

It  is  true  that  all  matters  arising  under  military  government 
may  not  be  of  this  urgent  nature.  The  system  of  administra- 
tion is  determined  upon  after  mature  deliberation.  Yet  unques- 
tioned recognition  by  all  within  its  domain  of  the  supremacy  of 
military  rule  will  ever  be  insisted  upon.  The  duty  of  cheerful 
submission  thereto  can  not  be  abated,  and  the  necessity  that 
exists  for  prompt  example  in  case  of  offenders  will  ever  be  pres- 
ent. Any  other  principle  might  jeopardize  the  success  of  cam- 
paigns, the  issues  of  the  war.  The  situation  of  the  commander, 
therefore,  is  one  requiring  the  exercise  of  a  wise  discretion  and 
high  order  of  ability.  And  immunity  from  accountability,  except 
to  his  military  superiors,  so  long  as  he  has  reasonable  cause  to 
deem  his  measures  justified  by  events  as  they  appear  to  him,  is 
his  safe-guard  in  the  discharge  of  delicate,  responsible,  and 
onerous  duties. 

The  situation  depicted  by  Lord  Mansfield,  in  Johnson  v. 
Sutton,  is  applicable  here  :  "  Commanders,  in  a  day  of  battle, 
must  act  upon  delicate  suspicions,  upon  the  evidence  of  their 
own  eye  ;  they  must  give  desperate  commands  ;  they  must  re- 
quire instantaneous  obedience. "  "  But, ' '  he  adds,  ' '  what  posi- 
tion will  a  commander  be  in   if,   upon  the  exercising  of  his 

1.  5  Gray  (Mass.),  121  et  seq. 


266  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

authority,  he  is  liable  to  be  tried  by  a  common-law  judicature  ? 
Not  knowing  the  law  or  the  rules  of  evidence  no  commander  or 
superior  officer  will  dare  to  act  ;  their  inferiors  will  insult  and 
threaten  them."  The  intensity  of  the  situation  of  the  com- 
mander enforcing  military  government  may  be  less  than  in  the 
case  here  described.  But  it  is  a  difference  in  degree  only,  not 
in  kind.  In  both  situations  the  necessity  exists  for  prompt  and 
independent  judgment  upon  the  condition  of  things  as  viewed 
by  the  responsible  officer.  In  each  a  wide  field  is  given  for 
the  exercise  of  discretion.  In  each,  moments  may  arise  when 
a  determination  must  be  come  to  of  far-reaching  consequences, 
with  nothing  to  govern  in  arriving  at  a  decision  except  the 
judgment  of  him  upon  whom  rests  the  responsibility  of  acting. 
In  the  ordinary  affairs  of  military  government,  however,  he 
will  have  opportunity  for  greater  deliberation.  He  will  then 
have  as  guides  to  aid  his  judgment,  not  only  the  apparent 
merits  of  the  case  in  hand,  but  the  surrounding  circumstances, 
the  demands  of  the  military  situation,  his  obligations  to  his 
own  government,  and  the  laws  of  war. 

But  it  will  not  be  forgotten  that  he  must  often  act  upon  the 
limited  evidence  of  his  own  senses,  or  the  reports  of  others,  and 
that  promptly.  The  cause  of  the  government  may  depend  upon 
his  firmness,  wariness,  and  apparently  arbitrary  acts.  The 
very  atmosphere  may  be  fraught  with  danger  which  others  do 
not  discern,  but  yet  be  apparent  to  him  whose  duty  it  is  to  keep 
thoroughly  informed,  and  to  whom  is  entrusted  the  honor  of  an 
army,  the  success  of  a  distant  expedition.  Nor  are  his  sources 
of  information  always  above  suspicion.  The  inhabitants  of  the 
occupied  territory  are  inimical  to  his  cause.  Every  success  of 
his  enemies  is  hailed  by  them  with  ill-concealed  delight.  Vigi- 
lance is  his  rule  of  conduct,  vigor  marks  his  actions.  Otherwise 
he  would  prove  unworthy  of  the  confidence  reposed  in  him. 
And  as  the  responsibility  he  is  under  to  his  military  superiors 
and  his  government  is  great,  so  in  corresponding  degree  should 
be  the  powers  with  which  he  is  vested.  Nor  is  it  a  legitimate 
objection  to  its  existence  that  some  may  abuse  this  power. 
Wherever  power  is  lodged  it  may  be  abused,  but  this  forms  no 
solid  objection  against  its  exercise.  Confidence  must  be  re- 
posed somewhere.  And  in  whom,  may  we  ask,  is  it  more 
rationally  reposed   than  in    military  officers    in  the  midst  of 


RESPONSIBILITY   OF   COMMANDERS.  267 

enemies,  where  specific  instructions  to  meet  the  varying  phases 
of  events  can  not  be  obtained  from  superiors,  and  where,  even 
if  this  were  attempted,  they  might  be  inapplicable  to  the  act- 
ual situation  of  affairs,  and,  if  followed,  would  jeopardize  the 
cause  they  were  intended  to  subserve  ?  His  is  peculiarly 
the  case  where  judgment  is  required,  and  therefore  he  must  be 
vested  with  discretion. 

As  for  subordinates,  the  rule  is  established  that  if  they  re- 
ceive orders  from  their  lawfully-constituted  superiors  which  do 
not  expressly  show  on  their  face  or  in  the  body  thereof  their 
own  illegality,  they  would  be  bound  to  obey  such  orders  which 
would  be  a  protection  to  them.1  "It  is  a  general  and  sound 
principle,"  say  the  court  in  Vanderheyden  v.  Young,  "that 
whenever  the  law  vests  one  with  a  power  to  do  an  act,  and  con- 
stitutes him  a  judge  of  the  evidence  on  which  the  act  ma}'  be 
done,  and  at  the  same  time  contemplates  that  the  act  is  to  be 
carried  into  effect  through  the  instrumentality  of  agents,  the 
person  thus  clothed  with  power  is  vested  with  discretion  and  is, 
quoad  hoc,  a  judge.  His  mandates  to  his  legal  agents,  on  his 
declaring  the  event  to  have  happened,  will  be  a  protection  to 
those  agents,  and  it  is  not  their  business  or  duty  to  investigate 
the  facts  thus  referred  to  their  superior  and  to  re-judge  his  de- 
termination. In  a  military  point  of  view  the  contrary  doctrine 
would  be  subversive  of  all  discipline."2  To  the  same  effect 
are  the  remarks  of  Mr.  Justice  Curtis  in  Despan  v.  Olney,  where 
a  general  officer,  acting  under  authority  of  law  for  sufficient 
cause  known  to  him,  had  directed  a  subordinate  to  arrest  the 
plaintiff.  "  I  do  not  think  the  defendant  was  bound  to  go  be- 
hind the  order,  thus  apparently  lawful,  and  satisfy  himself  by 
inquiry  that  his  commanding  officer  proceeded  upon  sufficient 
grounds.      To  require   this  would  be  destructive  tary 

discipline  and  of  the  necessary  promptness  and  efficiency  of  the 
service."  3 

The  principle  that  commanders  in  enemy  territory  subject  to 
military  occupation  are  peculiarly  entitled  to  and  must  from 
considerations  of  public  policy  and  even-handed  justice  receive 
every  protection  while  exercising  discretionary  authority  within 
their  respective  spheres  of  duty,  is  not  without  analogies  drawn 

1.  Riggs  v.  State,  3  Coldwell,  85.  2.   11  Johnson,  N.  Y. 

3.   1  Curtis  (C.  C),  306. 


268  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

from  other  branches  of  government.  It  is  particularly  true  of 
judges  on  the  bench.  "  It  is  a  general  principle  of  the  highest 
importance,"  said  the  Supreme  Court,  "  to  the  proper  adminis- 
tration of  justice,  that  a  judicial  officer  in  exercising  the  au- 
thority invested  in  him  shall  be  free  to  act  upon  his  own  con- 
victions without  apprehensions  of  personal  consequences  to 
himself.  '  It  has,'  as  Chancellor  Kent  observes,  '  a  deep  root  in 
the  common  law.'  Nor  can  this  exemption  of  judges  from 
civil  liability  be  affected  by  the  motive  which  prompts  them  to 
their  judicial  acts."  !  A  distinction  was  made  between  excess 
of  jurisdiction  and  the  clear  absence  of  all  jurisdiction  over  the 
subject-matter.  In  the  latter  case  the  authority  exercised  is 
usurped  and  when  known  to  the  judge  no  excuse  is  permissible. 
When  jurisdiction  is  vested  by  law  in  the  judge  or  in  the 
court  which  he  holds,  the  mode  in  which  it  shall  be  exercised 
is  generally  as  much  a  question  for  his  determination  as  any 
other  in  the  case,  although  upon  the  correctness  of  his  deter- 
mination in  this  particular  the  validity  of  his  judgments  may 
depend.  Against  the  consequences  of  the  erroneous  or  irregular 
action  of  judges,  from  whatever  motive  proceeding,  the  law  has 
provided  for  private  parties  numerous  remedies,  and  to  these 
they  must  resort.  But  for  malice  or  corruption  in  their  actions 
whilst  exercising  their  judicial  functions  within  the  general 
scope  of  their  jurisdiction,  judges  can  only  be  reached  by  public 
prosecution  in  the  form  of  impeachment,  or  in  such  other  form 
as  may  be  specially  prescribed.3  Commenting  on  the  subject, 
Lord  Coke  quaintly  said  :  ' '  And  the  reason  and  cause  why  a 
judge,  for  anything  done  by  him  as  judge,  by  the  authority 
which  the  king  hath  committed  to  him,  and  as  sitting  in  the 
seat  of  the  king  (concerning  his  justice),  shall  not  be  drawn  in 
question  before  any  other  judge,  for  any  surmise  of  corruption, 
except  before  the  king  himself  is  this  :  the  king  himself  is  de 
jure  to  determine  justice  to  all  his  subjects,  and  for  this  that  he 
himself  can  not  do  it  for  all  persons,  he  delegates  his  power  to  his 
judges  who  have  the  custody  and  guard  of  the  king's  oath. 
And  for  inasmuch  as  this  concerns  the  honor  and  conscience  of 
the  king  there  is  great  reason  why  the  king  himself  shall  take 
account  of  it,  and  none  other."  3 

i.   13  Wallace,  335.  2.   Ibid.  3.   Floyd  v.  Barker,  12  Coke,  23. 


RESPONSIBILITY   OF   COMMANDERS.  269 

This  immunity  of  judges  from  prosecution  for  acts  within 
their  jurisdiction  is  not  so  much  for  their  benefit  as  for  the 
benefit  of  the  suitors  themselves.  Yet  it  is  a  wise  and  benef- 
icent provision  of  the  law.  The  impartial  administration  of 
justice  demands  that  judges  shall  be  uninfluenced  by  consider- 
ations personal  to  themselves.  If  it  were  not  so  they  would 
soon  be  found  consulting  their  own  interests,  for  they  are  but 
men,  and  human  nature  long  and  severely  tested  will  always 
assert  itself. 

Do  not  similar  considerations  of  public  policy  require  the 
mantle  of  security  to  be  thrown  over  military  commanders  who 
are  called  upon  in  time  of  pressing  necessity  when  great  exi- 
gencies confront  them  to  act  for  the  public  weal  ?  After  having 
served  the  State  in  some  signal  manner,  is  their  conduct  to  be 
tested  by  rules  of  law  inapplicable  to  the  times  and  circum- 
stances which  then  surrounded  them  ?  If  so,  can  it  be  supposed 
that  they  will  be  unmindful  of  the  fact  ?  Will  its  tendency  not 
be  to  make  commanders  timid  at  the  very  time  they  should  act 
promptly  and  boldly  ?  Why  will  it  not  be  ?  Are  commanders 
less  than  judges,  human  beings?  Have  feelings  of  patriotism, 
the  promptings  of  virtue,  and  spirit  of  self-sacrifice  driven  from 
their  hearts  and  minds  all  feelings  of  self-interest  ?  To  some 
extent  this  is  true  ;  the  career  of  arms,  as  is  well  known,  is  not 
the  path  of  emolument.  But  soldiers  instinctively  dread  the 
meshes  of  the  civil  law  whose  sinuosities  they  are  not  accus- 
tomed to,  do  not  understand,  and  to  become  involved  in  which 
is  so  likely  to  prove  disastrous  to  them.  The  feeling  that  they 
may  be  called  civilly  to  account  for  their  actions  must  in  the 
nature  of  things  have  a  deterrent  effect  upon  them  ;  and  while 
this  may  operate  beneficially  in  some  instances  by  protecting 
the  citizen,  it  may  on  the  other  hand  be  the  cause  of  sacrificing 
great  governmental  interests,  those  in  which  not  only  the  rights 
of  individuals  but  the  well  being  of  society  itself  is  involved, 
because  under  such  liabilities  to  civil  suits  officers  may  hesitate 
to  assume  the  responsibility  of  acting  a  decisive  part  on  pressing 
and  important  occasions. 

It  is  not  contended  that  military  officers  enforcing  military 
government  should  be  absolutely  irresponsible  before  the  civil 
courts  of  their  own  country  for  their  conduct  towards  subjects 
and  neutrals,  and  answerable  only  to  their  military  superiors ; 


270  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

even  judges  are  subject  to  impeachment ;  but  what  is  contended 
for  is  this,  that  the  principle  being  recognized  that  public 
policy  is  subserved  by  granting  immunity  from  prosecution 
for  their  official  acts  to  certain  governmental  functionaries,  nota- 
bly the  members  of  the  judiciary,  the  same  or  similar  consid- 
erations prompt  to  a  liberal  rule  regarding  civil  liability  of  mili- 
tary officers  under  the  circumstances  mentioned.  A  slight 
attention  to  the  surroundings  of  the  two  classes  of  officers, 
judges  and  military,  will  make  this  plain.  The  former  attend 
to  their  duties  amidst  scenes'  of  peace,  and  only  when  they  are 
driven  from  their  seats  by  violence  which  the  civil  power  can 
not  control  are  the  military  called  upon  to  act  in  their  stead  ; 
the  civil  functionaries  have  all  necessary  time  for  deliberation, 
and  at  hand  every  means  for  ascertaining  the  law  and  prece- 
dents governing  the  case  ;  and  if  any  new  feature  of  law  or 
phase  of  human  action  arises  not  familiar  to  them,  their  opinions, 
if  they  be  judges,  are  reserved  until  a  thorough  investigation 
can  be  made,  all  pertinent  authorities  examined,  and  the  ju- 
dicial mind,  assisted  and  enlightened  by  arguments  of  learned 
counsel,  brought  calmly  and  carefully  to  bear  upon  the  point 
involved.  Almost  the  reverse  of  all  this  is  true  of  the  officer 
under  military  government  who  must  oftentimes  act  upon  the 
instant  without  time  for  consulting  aught  except  what  appears 
to  be  public  necessity,  amidst  scenes  which  absolutely  preclude 
the  receipt  and  examination  of  legal  evidence  ;  and  even  though 
the  exigency  should  not  be  of  this  sudden  character,  the  pres- 
sure of  long  accumulating  events,  the  carrying  out  a  predeter- 
mined governmental  policy  may  cause  him  to  adopt  the  most 
apparently  arbitrary  measures  to  guard  vital  public  interests 
entrusted  to  his  care.  And  reason  indicates  that  if  from  public 
policy  judges  should  be  accorded  immunity  from  prosecution, 
which  is  nowhere  denied  to  them  or  none  would  deprive  them  of, 
then  that  military  officers  in  the  discharge  of  what  appears  to 
be  their  duty  under  the  circumstances  mentioned  are  entitled 
to  have  their  acts  generously  construed,  and  to  receive  the 
most  liberal  consideration  consistent  with  the  preservation  of 
those  ultimate  and  inviolable  rights  of  the  subject  which  can 
not  be  sacrificed  without  a  complete  subversion  of  the  social 
fabric. 


RESPONSIBILITY    OF    COMMANDERS.  27 1 

The  civil  war  was  fruitful  in  experiences  of  this  nature. 
Frequent  causes  of  action  arose  and  the  principles  of  civil  re- 
sponsibility involved  often  became  the  subject  of  judicial  de- 
cision. In  many  respects  these  were  often  conflicting  in  greater 
or  less  degree.  This  was  but  natural  because  of  the  diversity 
of  interests  involved  and  local  prejudices  of  which  even  judges 
could  not  divest  themselves.  But  as  the  war  progressed,  as  the 
necessity  for  sustaining  military  commanders  became  more  ap- 
parent, as  judges,  instructed  by  the  logic  of  events,  began  to 
interpret  the  law  by  the  aid  of  practical  facts,  as  military  neces- 
sity passed  from  the  domain  of  speculation  to  a  momentous 
condition  of  facts  which  had  to  be  met  and  determined  in  the 
presence  of  war,  the  decisions  of  courts  became  more  liberal 
toward  military  officers.  And  the  more  exalted  the  court,  the 
greater  the  learning,  dignity,  and  responsibility  of  the  judges, 
the  more  carefully  were  the  principles  underlying  the  main- 
tenance of  military  government  unfolded,  amplified,  and  made 
plain  for  the  protection  of  officers  concerned  and  the  guidance 
of  those  to  come  hereafter. 

In  Taylor  v.  Nashville  and  Chattanooga  Railroad,  the  su- 
preme court  of  Tennessee  observed  that  the  rights  of  the  State 
to  impress  and  take  private  property  for  the  use  of  the  army  in 
the  field,  on  the  actual  theatre  of  military  operations,  was 
perfect,  and  without  it  a  nation  could  not  exist.1  It  must  be 
exercised  by  military  officers.  They  must  use  a  discretion, 
and  that  discretion,  unless  shown  to  have  been  wantonly  and  in 
bad  faith  abused,  can  not  be  revised  in  civil  courts.  ' '  The  neces- 
sity is  not  of  that  overwhelming  character  which  admits  of  no 
alternative.  If  the  interest  at  stake  may  probably  be  promoted 
by  the  appropriation  of  the  property  it  is  the  right  and  duty  of 
the  officer  upon  whom  rests  the  obligation  to  omit  no  useful  pre- 
caution to  take  and  appropriate  it.  It  is  true  a  military  com- 
mander has  no  right  to  take  private  property  without  a  neces- 
sity exists  for  his  doing  so.  But  the  law,  while  active  military 
operations  are  being  carried  on,  makes  him  the  judge  of  the 
necessity  and  he  can  not  be  held  responsible  in  a  civil  tribunal 
for  mere  errors  of  judgment.  Were  it  otherwise,  were  a  mili- 
tary commander  required  to  be  prepared  to  prove  at  any  subse- 

1.  6  Coldwell,  646. 


272  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

quent  time,  the  inevitable  necessity  for  marching  an  army  across 
a  citizen's  farm,  or  fighting  a  battle  around  his  house,  or  consum- 
ing his  produce,  our  officers  would  be  in  greater  danger  from 
their  friends  than  from  their  enemies.  A  commander  under 
such  circumstances  may  and  ought  to  take  such  property  as  in 
his  judgment  is  necessary,  or  may  possibly  contribute  to  save 
the  lives  of  his  soldiers  and  insure  the  success  of  his  campaign; 
and  if  in  good  faith  he  deems  the  taking  necessary  he  can  not 
be  required  to  weigh  nicely  in  the  balances  against  these  great 
objects,  the  value  of  a  load  of  wood  or  of  a  bushel  of  corn. 
The  responsibility  and  the  discretion  rest  with  the  commander, 
and  when  he  in  good  faith  assumes  the  one  and  exercises  the 
other,  a  civil  court  can  not  reverse  his  decisions,  but  must  pre- 
sume that  the  discretion  was  properly  exercised. ' ' 

It  is  true  that  the  plaintiff  in  this  case  was,  when  this  seizure 
was  made,  a  citizen  of  Tennessee — at  the  time  in  a  state  of  in- 
surrection— and  he  was  therefore  technically  in  the  position  of 
a  public  enemy  ;  but  at  the  time  of  the  suit  he  was  a  citizen 
of  the  United  States,  clothed  with  all  his  rights  as  such, 
and  the  court  was  administering  the  law  under  the  Constitution 
of  the  United  States.  The  decision  was  intended  to  and  did 
formulate  the  law,  as  understood  by  the  court,  applicable  to  mili- 
tary officers  under  the  circumstances  assumed,  and  bespeaks  an 
enlarged  discretion  amidst  such  surroundings. 

The  decision  heretofore  referred  to  of  the  Supreme  Court  of 
the  United  States,  reaffirming  that  of  the  supreme  judicial  tri- 
bunal of  Mississippi  in  the  case  of  Ford  v.  Surget,  confirms  in 
substance  the  principles  set  forth  in  the  Tennessee  supreme 
court  decision  just  cited.1  The  act  of  the  Confederate  govern- 
ment, March  6,  1862,  made  it  the  duty  of  military  command- 
ers to  destroy  all  cotton,  tobacco,  or  other  property  whenever, 
in  their  judgment,  it  should  be  about  to  fall  into  the  hands  of 
the  enemy.  The  Supreme  Court  said  that  this  act  conferred 
upon  Confederate  military  officers  no  authority  other  than, 
consistently  with  the  laws  and  usages  of  war,  they  might  have 
exercised  without  such  previous  sanction.  They  had  the 
right,  as  an  act  of  war,  to  destroy  private  property  within  the 
lines  of  insurrection  belonging  to  those  who  were  directly  or 

1.  97  U.  S.,  p.  596- 


RESPONSIBILITY   OP    COMMANDERS.  273 

indirectly  co-operating  therein  against  the  authority  of  the 
United  States  if  such  destruction  seemed  to  be  required  by  im- 
pending necessity  for  the  purpose  of  retarding  the  advance  or 
crippling  the  military  operations  of  the  Federal  forces.  The 
burning  of  the  cotton  or  other  property  which  would  add  to  the 
warlike  resources  of  the  Union  was,  under  these  circumstances, 
an  act  of  war  merely,  and  the  plain  duty  of  the  commander  or 
other  official  responsible  in  the  premises,  which  would  relieve 
him  from  civil  responsibility. 

The  importance  of  this  decision  arises  from  the  fact  that  it 
vests  in  the  commander  an  absolute  discretion  in  front  of  the 
enemy  and  in  presence  of  impending  danger — lodging  in  his 
breast  the  determination  of  the  question  whether  or  not  the 
necessity  has  arisen  justifying  the  destruction  of  private  prop- 
erty. If  it  seems  to  him  that  the  peril  is  great,  the  necessity 
imperious,  it  is  sufficient  ;  it  then  becomes  his  right,  may  be 
his  duty,  to  act.  Language  could  not  be  chosen  which  more 
certainly  would  place  the  whole  subject  in  the  judgment  of  the 
military  commander.  And  it  is  a  universal  rule  that  where 
the  law  gives  a  public  officer  a  discretion  whether  he  will  act 
or  not,  he  can  not  be  held  answerably  civilly  for  the  exercise  of 
that  discretion,  unless  it  can  be  shown  that  he  acted  corruptly, 
with  a  bad  heart,  and  abused  wickedly  the  confidence  thus  re- 
posed.1 

Furthermore,  the  liberality  of  this  decision,  when  contrasted 
with  those  of  some  State  courts,  especially  border  States  during 
the  civil  war,  is  particularly  noteworthy.  The  Government  of 
the  United  States  found  it  desirable  to  concede  the  rebels  bellig- 
erent rights.  This  was  in  the  interests  of  humanity,  accorded 
with  sound  policy,  and  the  fact  furnishes  the  foundation  on 
which  rests  the  decision  of  the  Supreme  Court  in  Ford  v. 
Suchet.  To  burn  the  cotton  was  a  belligerent  right  ;  the 
Confederate  commander  had  those  rights  ;  hence,  the  burning 
was  justified. 

It  is  a  monstrous  proposition  that  after  the  war- making 
power  has  invested  an  enemy  with  belligerent  rights  the  ju- 
diciary can  strip  him  of  the  protection  with  which  those  rights 
clothe  him.  Yet  that  was  the  predicament  in  which  numerous 
Confederate  officers  found  themselves  when  after  their  surren- 

1.  Drewy  v.  Coulton,  1  East  56,  notes  ;  Ela  v.  Smith,  5  Gray  (Mass.),  121  ; 
Piper  v.  Pearson,  2  Gray,  120  ;  and  Clarke  v.  May,  410,  do. 


2J4  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

der  they  returned  to  districts  which  they  had  visited  during  the 
war  only  to  find  themselves  assailed  by  civil  suits  for  clearly 
justifiable  belligerent  acts.  In  many  instances  the  judges  held 
them  to  the  strict  rule  of  Mitchell  v.  Harmony,  before  referred 
to,  though  wholly  inapplicable  to  their  cases  ;  in  others  the 
rules  held  to  apply  were  still  more  exacting,  being,  in  fact, 
nothing  but  the  civil  law  of  trespass.1  As  they  had  not  acted 
by  virtue  of  civil  authority,  but  in  defiance  of  it,  and  as  bellig- 
erents they  could  not  of  course  justify,  and  were  held  liable  in 
damages.  Could  they  have  appealed  to  the  highest  courts  the 
opinions  previously  quoted  show  that  the  decisions  of  the  local 
tribunals  would,  in  some  cases  at  least,  have  been  reversed;  but 
litigation  is  tedious,  expensive,  uncertain  as  to  results,  and 
frequently,  under  the  rules  of  court,  appeal  is  impossible.  It 
resulted  that  this  class  of  defendants  were,  with  few  exceptions, 
condemned  to  have  their  acts  warranted  by  the  laws  of  war 
tested  by  the  more  exact  rules  of  civil  conduct,  and  were  found 
wanting  accordingly. 

One  branch  of  the  rule  of  military  responsibility  enunciated 
in  the  decision  of  the  Supreme  Court  in  the  case  of  Mitchell  v. 
Harmony  was,  that  the  necessity  for  seizure  must  be  so  pressing 
that  the  civil  authorities  can  not  act  in  the  premises,  and  this 
has  been  reiterated  in  the  decisions  of  numerous  courts  since. 
Its  relevancy  in  the  original  decision  mentioned  is  not  apparent, 
because  there  was  no  civil  authority  within  hundreds  of  miles 
to  which  the  military  could  appeal,  or  which  would  have  been 
under  any  obligations  to  assist  them.  It  need  scarcely  to  be 
mentioned  that  this  principle  has  no  applicability  under  mili- 
tary government.  Whatever  of  the  civil  authorities  are  per- 
mitted to  perform  their  functions,  it  is,  as  has  been  pointed  out, 
for  the  benefit  of  the  conquered  as  an  act  of  grace  on  the  part  of 
the  conqueror,  and  at  most  for  his  convenience  ;  as  to  him  they 
have  no  legal  force,  nor  can  he  properly  invoke  their  interposi- 
tion if  by  doing  so  he  recognizes  them  otherwise  than  mere 
creatures  of  his  will.  He  may  not  legally  send  his  soldiers  or 
others  associated  with  his  army  as  followers  for  trial  before  the 
local  tribunals,  which  as  to  such  persons  are  wholly  without 
jurisdiction.2 

1.  72  N.  C,  218  ;    64  N.  C,   141  ;    5   Coldwell,   149  ;    3  Coldwell,  85  ;  4 

Coldwell,  205  ;  1  Heiskell,  44  ;  2  Bush,  453. 

2.  100  U.  S.,  163  ;  97  TJ.  S.,  517  ;  Halleck,  ch.  32,  section  6. 


MILITARY   GOVERNMENT — TRIBUNALS.  275 


CHAPTER   XV. 

MILITARY   GOVERNMENT — TRIBUNALS. 

Although  not  known  in  the  United  States  service  by  the 
name  military  commission  prior  to  the  promulgation  of  General 
Scott's  orders  in  Mexico,1  before  referred  to,  the  war  court, 
originally  based  on  the  common  law  of  war,  has  always  been 
recognized  in  the  service.  The  most  notable  instance  of  its 
being  resorted  to  during  the  Revolutionary  War  was  in  the  case 
of  Major  Andre,  which  because  of  the  prominence  of  all  there- 
with connected  was  treated  with  every  solemnity  and  dignity 
that  the  extraordinary  occasion  warranted.  A  '  board  ' — 'mili- 
tary commission '  of  the  present  day — composed  of  six  major 
generals  and  eight  brigadier  generals  with  a  judge  advocate, 
duly  assembled  by  the  commander-in-chief,  and  proceeding  not 
under  the  statutory  law  but  the  common  law  of  war,  sentenced 
the  unfortunate  Andre  to  suffer  death  by  hanging,  the  penalty 
of  his  rash  act — playing  the  part  of  a  spy.  The  validity  of  the 
proceedings,  findings,  and  sentence  of  that  commission  has  not 
been  and  can  not  successfully  be  impeached.  The  trial  of 
Joshua  Hett  Smith  was  another  conspicuous  instance  of  the 
exercise  of  like  jurisdiction  during  that  period. 

The  first,  and  a  memorable  instance  of  the  convening  a  war 
court  in  a  foreign  country  bj'  a  commander  of  United  States 
troops,  occurred  in  1818,  in  Florida,  then  a  territory  of  Spain. 
For  some  years  previous  to  that  the  Seminole  Indians  had 
made  the  western  part  of  Florida  not  only  a  place  of  permanent 
abode  but  of  retreat  when  returning  from  hostile  incursions  into 
the  Georgia  and  Alabama  territory  within  the  United  States. 
Under  article  5  of  the  treaty  of  1795  with  Spain,  that  govern- 
ment covenanted  to  restrain  by  force  these  acts  of  ruthless 
savage  warfare,  but  did  not  do  it.2  It  was  claimed  by  the 
Spanish  commanders  in  that  quarter,  and  was  probably  true, 
that  the  weakness  of  their  forces  precluded  the  possibility  of 

1.  See  Appendix,  I.  2.  8  Statutes  at  Large,  140. 


276  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

their  redeeming  the  pledges  of  their  government  in  this  behalf. 
To  chastise  these  hostiles,  consisting  of  Seminole  indians, 
negroes,  and  renegade  whites,  to  protect  the  inhabitants  of  that 
exposed  frontier  and  insure  future  peace  on  the  borders,  the 
President  of  the  United  States  ordered  General  Jackson,  com- 
manding the  division  of  the  south,  to  take  the  field.  If  neces- 
sary to  accomplish  these  objects,  the  general  was  instructed  to 
pass  the  boundary  line  between  the  territories  of  the  United 
States  and  Florida,  and  conduct  the  war  on  Spanish  soil.  This 
was  a  measure  of  necessity.  In  carrying  it  out  the  general 
necessarily  judged  of  the  means  to  be  made  use  of.  Having 
penetrated  into  the  interior  of  Florida,  in  pursuance  of  this 
plan,  and  taken  possession  of  the  Spanish  fort,  St.  Marks,  he 
issued  at  that  point,  on  April  26,  1818,  a  general  order  detailing 
a  '  special  court, '  composed  of  a  president,  twelve  members, 
and  a  recorder,  for  the  purpose  of  investigating  certain  allega- 
tions against  civilians  captured  in  the  Indian  country,  to  the 
effect  that  they  were  or  had  been  stirring  up  the  savages  against 
the  people  of  the  United  States,  aiding,  abetting,  and  comfort- 
ing them,  and  supplying  them  with  means  of  carrying  on  the 
war.  The  court  was  directed  to  make  a  record  of  all  the  docu- 
ments and  testimony  in  the  several  cases,  of  their  opinion  as  to 
the  guilt  or  innocence  of  the  prisoners,  and  what  punishment  if 
any  should  be  inflicted.  Both  persons  tried  before  this  court 
were  British  subjects.  Both  were  found  guilty  of  the  crimes 
alleged  against  them  with  certain  exceptions.  Arbuthnot  was 
sentenced  to  be  hanged,  and  Ambrister  to  be  shot  to  death  ; 
but  the  court  reconsidered  the  latter  sentence  and  changed  it 
to  fifty  lashes.  The  proceedings  and  findings  and  first  sen- 
tences were  approved  ;  the  second  sentence  in  Ambrister' s  case 
was  disapproved.     Both  prisoners  suffered  the  death  penalty.1 

This  transaction  gave  rise  to  much  controversy.  The  au- 
thority of  the  commanding  general  to  convene  the  court,  and 
particularly  his  authority  under  the  circumstances  to  carry  into 
execution  the  first  sentence  imposed  in  the  case  of  Ambrister, 
was  questioned. 

It  is  not  perceived  how  these  objections  can  be  maintained. 
As  to  the  first,  it  is  to  be  observed  that  the  officer  convening 

1.  Arner.  State  Papers,  Mil.  Affairs,  vol.  I,  p.  734. 


MILITARY    GOVERNMENT — TRIBUNALS.  277 

the  court  was  at  the  time  engaged  in  carrying  on  war.  In  in- 
vading Spanish  territory  he  was  acting  under  and  pursuant  to 
the  orders  of  the  President.  That  Spain  might  have  deemed 
this  a  just  cause  of  war  may  be  conceded  ;  but  no  exception 
rightly  can  be  taken  to  the  actions  of  the  commander  in  carry- 
ing out  those  orders.  The  government  of  the  United  States 
alone  was  responsible  for  this  invasion  of  the  soil  of  a  friendly 
power.  In  carrying  into  execution  the  views  of  the  govern- 
ment the  American  general  in  effect  conquered  the  whole  of 
West  Florida.  This  was  necessary  in  order  that  citizens  of  the 
United  States  might  be  protected  against  savages  and  their 
allies  who  had  made  that  territory  a  place  of  arms,  whence 
they  issued  on  their  incursions  of  desolation,  and  to  which  they 
had  been  accustomed  to  retreat  as  a  secure  place  of  refuge  be- 
fore the  American  forces.  Although  war  had  not  formally 
been  declared  against  Spain,  a  state  of  war  against  her  depend- 
ency in  fact  existed.  The  President,  acting  within  his  consti- 
tutional powers,  had  determined  how  it  should  be  conducted.1 
General  Jackson,  it  is  conceived,  was  empowered  to  exercise  all 
the  belligerent  rights  of  a  commander  operating  in  a  foreign 
country.  Among  these  is  the  right  to  execute  summarily  those 
persons  who  have  been  guilty  of  a  violation  of  the  laws  of  war  ; 
or  if  he  deems  it  advisable,  to  convene  a  war  court  for  the  trial 
of  such  cases.  This  authority  the  general  exercised.  The 
'  special  court '  for  the  trial  of  Arbuthnot  and  Ambrister  was 
a  war  court,  such  as  would  now  be  known  as  a  military  com- 
mission The  general  did  not  find  his  authority  to  convene  it  in 
the  statutory  law,  but  in  the  laws  of  war. 

As  to  the  second  objection  :  Premising  that  the  commanding 
general  had  authority  summarily  to  execute  persons  who 
were  guilty,  on  the  theatre  of  war,  of  the  crimes  which-  Arbuth- 
not and  Ambrister  had  perpetrated  ;  that  the  '  special  court  ' 
was  asked  for  its  opinion  only  both  as  to  guilt  and  adequate 
punishment,  General  Jackson  maintained  that  this  '  opinion  ' 
could  not  divest  him  of  his  original  authority  to  proceed  sum- 
marily, which  in  effect  he  did  by  directing  that  Ambrister  be 
executed.  Grant  the  premises,  and  the  conclusion  follows. 
Has,  then,  a  military  commander,  conducting  a  campaign  in 

1.  2  Black,  670. 


278  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

enemy  country,  authority,  under  the  laws  of  war  and  without 
the  interposition  of  a  court,  summarily  to  punish  those  who, 
making  peaceable  foreign  territory  a  point  of  support,  send  forth 
indians  and  more  savage  negroes  to  make  war  upon  peaceable 
citizens  of  the  United  States  ?  Such  acts  are  those  of  free- 
booters, and  the  actors,  when  apprehended,  can  expect  no 
quarter.  Arbuthnot  and  Ambister  were  caught  on  foreign 
soil  red-handed  from  their  nefarious  work.  It  is  submitted 
that  the  American  general  had  the  power  summarily  to  exe- 
cute them.  It  should  be  cautiously  exercised,  but  this  consid- 
eration does  not  impair  the  power  itself.  The  law  of  April  10, 
1806,  by  rendering  the  interposition  of  a  court-martial  neces- 
sary in  the  case  of  spies,  to  that  extent  only  limited  a  previously 
existing  plenary  power.1  Nor  is  it  believed  that  either  the  old 
or  the  existing  statute  has  any  application  to  savages,  their 
aiders  or  abettors.2  Be  that  as  it  may,  no  statute  existed  at 
the  time  General  Jackson  exercised  this  authority  which  im- 
paired his  powers  under  the  laws  of  war,  except  as  to  spies, 
when  he  was  operating  in  enemy  country.  It  is  believed, 
therefore,  that  in  directing  the  execution  of  Ambrister,  he  did 
not  transcend  those  powers.3 

The  action  of  General  Scott  in  Mexico,  and  of  various  com- 
manders in  districts  recovered  from  rebels  during  the  civil  war, 
in  appointing  military  commissions  was  but  an  exercise  of  au- 
thority in  enemy  country  similar  to  that  of  which  General 
Jackson's  conduct  furnishes  an  illustration.  That  the  last 
mentioned  exercise  of  authority  was  accompanied  by  incidents 
which,  aside  from  the  merits  of  the  case,  rendered  it  a  subject 
of  acrimonious  political  discussion,  indulged  in  by  those  who 
were  secure  from  the  terrorizing  circumstances  which  gave  rise 
to  the  measures  adopted,  in  no  wise  affects  the  principles  in- 
volved. 

The  rule  that  in  the  absence  of  statutes  the  customs  of  war 
are  to  govern  where  they  are  applicable,  is  clearly  stated  in  the 
opinion  of  the  Supreme  Court  in  the  case  of  Martin  v.  Mott.4 
Commenting  on  the  fact  that  the  act  of  February  28th,  1795,5 
authorizing  the  President  to  call  forth  the  militia  in  certain  exi- 

1.  (Section  2)  vol.  2,  p.  371,  Statutes  at  Large.  2.  Section  1343,  R.  S- 
3.  American  Instructions,  section  4,  clauses  2  and  4.  4.   12  Howard, 

PP-  36,  37-  5-  1  Stat,  at  Lg.,  424- 


MILITARY    GOVERNMENT — TRIBUNALS.  279 

gences,  did  not  render  obligatory  for  their  trial  when  in  service 
those  articles  of  war  for  the  government  of  the  United  States 
army  which  related  to  courts-martial,  it  was  remarked  by 
Justice  Story  that  if  resort  was  to  be  had  to  those  articles  in  the 
court-martial  of  militiamen  it  could  only  be  to  guide  the  dis- 
cretion of  the  officer  ordering  the  court,  and  not  as  matter  of 
positive  institution.  And  if  it  be  asked  in  what  manner  militia 
courts -martial  are  to  be  appointed,  in  the  absence  of  provisions 
of  law  directly  bearing  on  the  subject,  the  answer  is  according 
to  the  general  usage  of  the  military  service,  or  what  may  not 
unfitly  be  called  the  customary  military  law.  It  is  that  law  by 
which  courts-martial,  when  duly  organized,  are  bound  to  exe- 
cute their  duties  and  regulate  their  mode  of  proceeding  in  the 
absence  of  positiYe  enactments.  Upon  any  other  principle 
courts-martial  would  be  left  without  any  adequate  means  to  ex- 
ercise the  authority  confided  to  them,  for  there  could  scarcely 
be  framed  a  positive  code  to  provide  for  the  infinite  variety  of 
incidents  applicable  to  them.  Of  questions  not  depending 
upon  the  construction  of  statutes,  but  upon  unwritten  military 
law  or  usage,  military  officers,  from  their  training  and  experi- 
ence in  the  service,  are  more  competent  judges  than  common- 
law  courts.1 

The  commander  who  appoints  military  commissions  does  so 
in  every  case  under  a  responsibility  to  his  own  government.  He 
may  be  held  answerable  in  certain  cases  likewise  to  those  whom 
he  sends  before  such  tribunals  in  cases  giving  rise  to  transitory 
actions.  It  is  true  that  members  of  an  invading  army  are,  as 
respects  the  conquered  people,  subject  to  the  laws  of  war,  and 
are  responsible  only  to  their  own  government  and  the  tribunals 
by  which  those  laws  are  administered.2  But,  as  before  pointed 
out,  it  is  not  doubted  that  transitory  actions  accruing  to  others 
than  the  conquered  are  not  necessarily  defeated  by  the  fact  that 
the  cause  which  originated  them  arose  under  military  govern- 
ment. 

Members  of  commissions  or  other  military  government  tribu- 
nals are  not  civilly  liable  (if  the  convening  order  was  authorized 
either  by  statute  or  the  laws  of  war),  if  the  person  and  subject  - 

1.   116  U.  S.,  178.  2.   100  U.  S.,  166  ;  97  U.  S.,  pp.  60- '3  ;  American 

Instructions,  section  2,  clause  17. 


28o  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

matter  rightfully  be  within  their  jurisdiction  and  the  sentence 
or  decree  one  which  under  the  same  laws  is  authorized.  It  is 
true  that  such  tribunals  do  not  exercise  any  portion  of  the  ju- 
dicial power  of  the  United  States.  But  it  does  not  follow  that 
the  authority  exercised  by  them  is  not  in  its  nature  judicial. 
There  are  many  other  courts  exercising  authority  under  Federal 
laws  which  form  no  part  of  the  Federal  judiciary.  Referring 
to  the  judges  of  the  superior  courts  of  the  territory  of  Florida, 
the  Supreme  Court  of  the  United  States  remarked  :  ' '  They 
hold  their  offices  for  four  years  ;  these  courts  then  are  not  con- 
stitutional courts  in  which  the  judicial  power  conferred  by  the 
Constitution  on  the  general  government  can  be  deposited.  They 
are  incapable  of  receiving  it.  They  are  legislative  courts,  cre- 
ated in  virtue  of  the  general  right  of  sovereignty  which  exists 
in  the  government."  1  Yet  such  courts  exercise  judicial  au- 
thority. They  are  as  much  judicial  tribunals  as  any  in  the 
land.  Similarly  the  authority  exercised  by  military  tribunals 
under  military  government  is  judicial  in  the  nature,  though  not 
in  the  sense  in  which  judicial  power  is  granted  to  the  courts  of 
the  United  States.  It  is  a  special  authority  involving  discre- 
tion to  examine,  to  decide,  and  to  sentence.2 

Military  commissions  may  be  appointed  either  under  pro- 
visions of  law  in  certain  instances,3  or  under  that  clause  of  the 
Constitution  vesting  the  power  of  commander-in-chief  in  the 
President,  who  may  exercise  it  either  directly  or  through  subor- 
dinate commanders.'4  Now  it  is  a  principle  that  no  one,  even 
though  commanded,  is  bound  to  do  that  which  is  unlawful. 
This  applies  to  soldiers  as  well  as  to  others.5  The  soldier,  how- 
ever, who  assumes  to  question  the  order  of  his  commander  does 
so  at  his  peril.  This  rule  lies  at  the  foundation  of  military 
discipline.  It  leads  to  unquestioned  obedience,  without  which 
the  military  system  could  not  exist,  the  army  become  a  rabble, 
dangerous  to  society  in  proportion  to  its  numbers. 

An  order  convening  a  military  commission  or  other  tribunal 
which  does  not  expressly  show  on  its  face  or  in  the  body  thereof 
its  own  illegality,  members  of  the  arm5'  would  be  bound  to 
obey,  and  such  an  order  would  be  a  protection  to  them.6     A 

I.   i  Peters,  546.  2.  1  Wallace,  253.  3.  Act  March  3,   1863, 

ch.  75,  sec.  30;  July  2,  1864,  cli.  215,  sec.  1  ;  acts  March  2,  July  19,  1867. 
4.  Art.  2,  sec.  2,  cl.  1,  Constitution.  5.  See  2d  and  21st  Articles  of  War. 
6.  3  Coldwell  (Tenn.),  85  ;  1  Abbott,  212  (Scott's  Digest,  428). 


MILITARY    GOVERNMENT — TRIBUNALS.  28 1 

military  person  is  justified  by  an  order  from  the  commander 
within  the  scope  of  his  authority.  If  the  superior  has 
secretly  abused  his  power  he  and  not  the  subordinate  who 
executed  the  order  is  answerable.1  It  is  no  affair  of  the  subordi- 
nate that  the  superior  has  acted  from  unworthy  motives.  And 
when  legally  convened  the  members  would  in  no  instance  be 
liable  civilly  if  jurisdiction  of  the  cause  and  authority  existed 
for  passing  the  sentence,  unless  malice  or  corruption  be  proved. 
The  English  case  of  Scott  v.  Stanfield  goes  beyond  this.  A 
judge  of  a  county  court  was  sued  for  slander  ;  plea  of  language 
used  in  his  capacity  of  judge  ;  replication  that  the  words  were 
spoken  falsely  and  maliciously  and  without  probable  cause  ;  de- 
fendant, demurred  and  the  Court  of  Exchequer  held  the  demurrer 
well  taken.  The  chief  baron  said  :  ' '  The  question  arises  for  the 
first  time,  perhaps,  with  reference  to  a  county  court  judge,  but  a 
series  of  decisions,  uniformly  to  the  same  effect,  extending  from 
the  time  of  Lord  Coke  to  the  present,  establish  the  general 
proposition  that  no  action  will  lie  against  a  judge  for  any  acts 
done  or  words  spoken  in  his  judicial  capacity  in  a  court  of 
justice.  This  doctrine  has  been  applied  not  only  to  the  superior 
courts  but  to  the  court  of  a  coroner,  and  to  a  court-martial, 
which  is  not  a  court  of  record.  It  is  essential  to  all  courts  that 
the  judges  who  are  appointed  to  administer  the  law  should  be 
permitted  to  administer  it  under  the  protection  of  the  law,  in- 
dependently and  freely  without  favor  and  without  fear.  This 
provision  of  the  law  is  not  for  the  benefit  of  the  judges  but  the 
public. ' ' 

If  jurisdiction  be  rightly  had  of  the  person  and  the  subject- 
matter  and  the  court  come  to  an  erroneous  conclusion,  although 
the  person  prejudiced  thereby  would  by  reason  of  this  error  be 
entitled  to  have  the  sentence  or  judgment  set  aside,  and  to  be 
restored  to  his  former  rights,  yet  the  members  of  the  court  are 
not  liable  in  damages,  as  if  the  court  had  proceeded  without 
jurisdiction. 

There  is  nothing  new  in  the  principle  which  protects  mem- 
bers of  military  commissions,  acting  within  the  sphere  of  their 
authority,  from  prosecution  for  mere  errors  of  judgment.  It 
has  been  recognized  by  the  English  courts  for  many  years  as 

1.   1  Curtis  (C  C),  306;  7  Howard,  1. 


282  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

applicable  to  naval  officers  making  captures  at  sea.  Naval 
forces  ought  not  to  make  capture  of  anything  not  lawful  prize  ; 
but  if  they  do  and  the  captured  property  be  restored  to  the 
owner  by  the  prize  court,  the  captors  are  not  liable  to  suit  at 
common  law  for  the  trespass.  The  prize  courts  alone  have 
jurisdiction  for  the  redress  of  such  wrongs.  This  was  decided 
as  early  as  1781  in  I^e  Caux  v.  Eden.1  The  opinion  of  Buller, 
J.,  in  this  case  reviews  all  the  authorities  and  precedents,  and 
Lord  Mansfield  gave  his  assent  to  all  it  contained.  Subse- 
quently Lord  Mansfield  himself  delivered  an  opinion  upon  the 
same  question,  in  which  he  asserted  the  same  doctrine  with  re- 
newed emphasis.2  The  authority  of  these  cases  has  never  been 
doubted.3  "Military  forces,"  said  the  Supreme  Court,  "act 
in  the  field  according  to  the  laws  of  war,  upon  appearances, 
not  upon  testimony  ;  they  occupy  on  land  the  same  position 
that  naval  forces  do  at  sea."  4 

The  jurisdiction  of  military  commissions,  as  to  persons,  ex- 
tends to  all  within  territory  under  military  government.  The 
principle  of  exterritorialty,  which  absolves  foreign  ministers 
from  responsibility  before  local  tribunals,  has  there  no  applica- 
tion.5 This  follows  from  the  nature  of  the  occupation.  The 
country  is  held  by  right  of  conquest,  under  which  circumstances 
the  laws  of  war  give  the  commander  or  his  government  the 
absolute  right  to  prescribe  the  terms  upon  which  all  persons 
whomsoever  shall  either  go  from  or  enter  the  conquered  dis- 
trict.6 

Military  tribunals,  convened  under  the  laws  of  war  in  terri- 
tory subject  to  military  government,  may,  at  the  pleasure  of 
the  convening  authority,  be  given  cognizance  of  all  causes  not 
brought  within  the  jurisdiction  of  a  particular  tribunal  by  some 
statute  of  the  conquering  State.7  The  name  by  which  the  tri- 
bunals may  be  designated  can  not  affect  their  jurisdiction.  The 
trial  of  causes  concerning  inhabitants  of  the  conquered  district 
before  the  local  tribunals  is  matter  wholly  of  comity  or  conveni- 

1.   2  Douglass,  594.  2.  Linds  v.  Rodney,  note  to  Le  Caux  v.  Eden, 

p.  612.  3.  92  U.  S.,  197.  4.  Ibid.,  196.  5.  Halleck, 

chap.  9,  sec.  12  ;  American  Instructions,  sec.  5,  clause  2  ;  92  U.  S.,  520; 
9  How.,  615.  6.  See  authorities  last  cited  ;  2  Wallace,  275. 

7.  22  Wallace,  297  ;  20  Wallace,  387  ;  97  U.  S.,  509;  20  Howard,  178  ; 
Act,  March  3,  1863,  ch.  75  ;  Scott's  Autobiography,  pp.  541,  575. 


MILITARY    GOVERNMENT— TRIBUNALS.  283 

ence  not  obligatory  on  the  conqueror.  Should  he  permit  it, 
this  fact  does  not  deprive  him  of  the  right  to  recur  at  will  to 
the  sterner  rules  of  conquest.  Subject  to  the  statutory  limit- 
ations just  mentioned  he  has  full  authority  to  have  all  cases, 
civil  or  criminal,  affecting  all  persons,  arising  in  the  conquered 
district,  determined  before  tribunals  convened  by  his  authority. 
And  so  if  criminals  escaped  from  districts  beyond  are  found 
within  the  jurisdiction  of  military  government,  their  cases,  if 
proper  for  the  adjudication  of  the  military  court,  may  be  tried 
there.  The  military  commander  will  not  permit  territory 
subdued  by  his  arms  to  be  made  a  place  of  refuge  for  escaped 
criminals. 

This  authority  is  co-extensive  with  the  demands  of  society, 
the  business  relations  of  the  subjugated  inhabitants,  and  the 
necessity  for  efficient  military  control.  Whether  the  offences 
be  violations  of  the  laws  of  war,  or  crimes  punishable  by  the 
ordinary  laws  of  civilized  nations,  or  civil  causes  between  party 
and  party  in  the  district,  the  jurisdiction  of  military  courts  con- 
vened by  authority  of  the  commander  is  complete,  to  be  invoked 
at  the  commander's  discretion. 


284  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 


CHAPTER  XVI. 


WHEN   MILITARY   GOVERNMENT   CEASES. 

Such  being  the  nature,  the  scope,  and  incidents  of  military 
government,  the  question  as  to  when  it  ceases  becomes  impor- 
tant. And  as  this  affects  all  concerned,  conquerors  and  con- 
quered alike,  it  is  necessary  that  it  be  certainly  determined. 

The  time  when  military  government  is  discontinued,  as  well 
as  the  attending  incidents  thereof,  depends  on  circumstances. 
The  conqueror  may  be  expelled,  he  may  permanently  hold  the 
territory,  or  he  may  surrender  it  under  terms  embodied  in  treaty 
stipulations.  In  the  first  case  the  restored  government  will, 
upon  resuming  control,  instantly  re-establish  the  former  order 
of  things,  at  least  so  far  as  this  may  be  found  practicable 
amidst  warlike  operations.  The  rule  of  the  conqueror  would 
cease  directly  upon  his  expulsion,  and  the  people  at  once  re- 
sume their  original  relations  to  the  government  of  their  per- 
manent allegiance.  Still,  when  the  conqueror  ruled,  his  gov- 
ernment, though  founded  on  military  force,  was  a  de  facto  gov- 
ernment. To  it  those  who  received  its  protection  gave  their 
obedience,  and  whatever  measures  were  taken  under  its  au- 
thority pursuant  to  the  laws  of  war,  affecting  the  people  in 
either  their  rights  of  persons  or  property,  should  receive  the 
sanction  of  the  old  and  now  rehabilitated  government.1 

Should  the  conqueror  permanently  acquire  the  country,  mili- 
tary rule  would  of  necessity  be  maintained  until  such  time  as 
the  civil  could  be  established  upon  principles  which  comported 
with  the  interests  and  inclinations  of  the  dominant  power. 
When  war  ceases  the  laws  of  war  no  longer  govern,  for  the 
same  reasons  that  they  did  before,  namely,  that  a  state  of  war 
has  its  own  laws  ;  and  now  as  peace  has  returned,  the  laws  of 
peace  should  prevail ;  yet  it  may  be  necessary  to  maintain  the 
laws  of  war  in  operation  after  active  resistance  in  the  field  has 
ceased,  as  a  means  of  protecting  life  and  property,  building  up 

1.  4  Wheaton,  253  ;  92  U.  S.,  193;  Bluutschli,  I,  sees.  199,  210. 


WHEN    MILITARY   GOVERNMENT   CEASES.  285 

society,  and  restoring  civil  government.  During  this  period  of 
transition  authority  wielded  by  the  military  may  differ  but 
little  from  that  exercised  during  war  itself.  The  measures 
taken  are  adapted  to  the  occasion.  Disorder  is  abroad  in  the 
land  ;  the  bad  elements  of  society  are  to  be  held  in  check,  and 
well-regulated  government  brought  out  of  that  chaotic  state  of 
affairs  which  follows  almost  invariably  in  the  wake  of  a  violent 
change  of  rulers.  Amidst  such  surroundings,  those  in  power 
must  act  promptly  and  decisively,  for  order  must  be  maintained. 
If  they  were  not  permitted  to  do  this,  anarchy  would  soon  run 
riot.  Everywhere  government  of  some  kind  is  a  necessity  ;  if 
the  civil  can  not  rule,  the  military  must  be  maintained  ;  and 
the  situation  of  a  conquered  province  until  regularly  incorpo- 
rated into  the  subjugating  State  and  given  the  benefits  of  its 
laws  is  one  demanding  in  a  peculiar  manner  the  prompt  action, 
vigilant  care,  and  powerful  arm  of  military  control.  As  was 
said  by  Lord  Hale  :  "In  matters  civil  for  which  there  is  no 
remedy  by  the  common  law,  the  military  jurisdiction  continues 
as  well  after  the  war  as  during  the  time  of  it. "  x 

The  condition  of  affairs  here  described  is  that  which  in  the 
language  of  the  Supreme  Court  is  characterized  as  "a  state  of 
war,"  as  distinguished  from  one  of  active  hostilities.2  And  so 
when  referring  to  California  immediately  subsequent  to  the 
treaty  of  peace  with  Mexico,  and  before  that  State  was  admitted 
into  the  Union,  Mr.  Buchanan,  Secretary  of  State,  said:  "By 
the  conclusion  of  the  treaty  of  peace  the  military  government 
has  ceased  to  derive  its  authority  from  the  laws  of  war.  But 
the  termination  of  the  war  left  an  existing  government,  a 
government  de  facto  in  full  operation,  and  this  will  continue 
with  the  presumed  consent  of  the  people  until  Congress  shall 
provide  for  them  a  territorial  government.  The  great  law 
of  necessity  justifies  this  conclusion.  The  consent  of  the  people 
is  irresistibly  inferred  from  the  fact  that  no  civilized  community 
could  possibly  desire  to  abrogate  an  existing  government,  when 
the  alternative  presented  would  be  to  place  themselves  in  a 
state  of  anarchy  beyond  the  protection  of  all  laws  and  reduce 
them  to  the  unhappy  necessity  of  submitting  to  the  dominion 
of  the  strongest. ' ' 

1.  Army  of  the  Deccarj,  2  Knapp's  Rep.,  pp.  i49-'5i. 
2.  92  U.  S.,  193. 


286  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

The  question  as  to  when  military  government  in  California 
terminated  afterwards  came  up  for  discussion  before  the  Su- 
preme Court  of  the  United  States.1  The  court  remarked  that 
this  government  had  its  origin  in  the  lawful  exercise  of  a  bellig- 
erent right  over  a  conquered  territory.  It  had  been  instituted 
during  the  war  by  the  command  of  the  President  of  the  United 
States.  It  was  the  government  when  the  territory  was  ceded 
as  a  conquest,  and  it  did  not  cease,  as  a  matter  of  course,  or  as 
a  necessary  consequence  of  the  restoration  of  peace.  The 
President  might  have  dissolved  it  by  withdrawing  the  army 
and  navy  officers  who  administered  it,  but  he  did  not  do  so. 
Congress  could  have  put  an  end  to  it,  but  that  was  not  done. 
The  right  inference  from  the  inaction  of  both  was  that  it  was 
meant  to  be  continued  until  it  was  legislatively  changed.  No 
presumption  of  a  contrary  intention  could  be  made.  Whatever 
may  have  been  the  causes  of  delay,  it  was  to  be  presumed  that 
the  delay  was  consistent  with  the  true  policy  of  the  govern- 
ment ;  and  the  more  so,  as  it  was  continued  until  the  people  of 
the  territory  met  in  convention  to  form  a  State  government, 
which  was  subsequently  recognized  by  Congress  under  its 
power  to  admit  new  States  into  the  Union.  The  court  con- 
cluded, therefore,  that  the  so-called  civil  but  really  military  gov- 
ernment of  California,  organized  as  it  was  as  a  right  of  con- 
quest, did  not  cease  or  become  defunct  in  consequence  of  the 
signature  of  the  treaty  of  peace  with  Mexico  or  from  its 
ratification  ;  and  that  it  was  continued  over  a  ceded  conquest 
without  any  violation  of  the  Constitution  or  laws  of  the  United 
States. 

The  war  tariff,  imposed  on  imports  into  that  territory,  was 
continued  until  the  military  governor  received  notification  of 
the  ratification  of  the  treaty  of  peace.     He  then,  August  7th, 

1848,  discontinued  it  and  substituted  in  its  place  the  general 
tariff  laws  of  the  United  States,  although  not  until  March  3d, 

1849,  was  the  act  of  Congress  passed  extending  those  laws  to 
California,  and  not  until  November  15th,  1849,  did  the  collector 
for  the  port  of  San  Francisco,  appointed  thereunder,  enter  upon 
the  performance  of  his  duties.  In  fact,  the  military  govern- 
ments in  California  and  New  Mexico,  both  of  which  territories 

1.   16  Howard,  190. 


WHEN   MILITARY   GOVERNMENT   CEASES.  287 

were  ceded  to  the  United  States,  continued  until  September  9, 
1850,  when  the  former  was  admitted  as  a  State  and  the  latter 
organized  under  a  territorial  government  pursuant  to  act  of 
Congress.  In  L,eitensdorfer  v.  Webb,1  it  was  said  of  the  judi- 
cial system  established  in  New  Mexico  by  the  military  governor, 
that  it  remained  with  functions  unimpaired  after  the  return  of 
peace,  until  modified  either  \>y  Congressional  legislation  di- 
rectly or  by  that  of  the  territorial  government  in  the  exercise  of 
powers  delegated  by  Congress. 

Referring  to  this  subject  Halleck  says:  "There  can  be  no 
doubt  that  when  war  ceases  the  inhabitants  of  the  ceded  con- 
quered territory  cease  to  be  governed  by  the  code  of  war.  Al- 
though the  government  of  military  occupation  may  continue, 
the  rules  of  its  authority  are  essentially  changed.  It  no  longer 
administers  the  laws  of  war,  but  only  those  of  peace.  The 
governed  are  no  longer  subject  to  the  severity  of  the  military 
code,  but  are  remitted  to  their  rights,  privileges,  and  immuni- 
ties under  the  code  civil.  Hence  any  laws,  rules,  or  regulations 
introduced  by  the  government  of  military  occupation  during 
the  war  which  infringe  upon  the  civil  rights  of  the  inhabitants, 
necessarify  cease  with  the  war  in  which  they  had  their  origin 
and  from  which  they  derived  their  force."  i 

If  the  distinguished  publicist  meant  here  to  abridge  the  abso- 
lute right  of  the  conqueror  to  institute  over  territory  he  has 
permanently  won  by  the  sword  such  government  as  he  sees  fit, 
unless  by  treaty  stipulation  he  has  pledged  his  faith  to  a  differ- 
ent course,  the  history  of  the  world  will  not  sustain  the  asser- 
tion. A  subjugated  people  must  abide  by  the  will  of  those 
who  have  reduced  them  to  submission.  Policy,  the  promptings 
of  humanity,  or  perhaps  measures  of  necessity,  determine  the 
conqueror's  conduct  towards  them.  That  of  right  they  enjoy 
the  privileges  and  immunities  which  were  theirs  under  the 
former,  but  now  displaced  government  can  not  be  maintained, 
unless  the  conqueror  has  conceded  this.  The  course  pursued 
by  the  Government  of  the  United  States  towards  the  provinces 
wrested  from  Mexico  would,  if  considered  alone,  perhaps  war- 
rant the  assertions  of  the  author  quoted.  That,  however, 
would  be  entirely  too  narrow  a  view  to  take  of  the  subject.  It 
was  the  policy  of  the  United  States  to  win  over  those  inhabit- 

1.  20  Howard,  177.  2.  Chapter  33,  sec.  18. 


288  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

ing  the  subjugated  districts  in  every  possible  manner.  They 
were  comparatively  few  in  number,  and  while  their  conduct 
had  been  signalized  by  some  conspicuous  acts  of  perfidy,  they 
were  not  actuated  by  a  formidable  spirit  of  resistance,  and  kind- 
ness toward  them  seemed  both  safe  and  politic.  Repressive 
measures  of  a  severe  character  were  not  found  to  be  generally 
necessary  under  such  circumstances,  and  haste  was  made  after 
the  war  to  restore  the  people  to  all  their  ancient  civil  rights 
which  were  found  to  be  compatible  with  the  institutions  of  the 
government  of  their  new  and  permanent  allegiance. 

Without  recalling  instances  from  history  to  establish  the 
proposition,  almost  axiomatic,  that  a  conquered  people  re- 
tain only  those  rights  which  accord  with  the  policy  of  the 
conqueror  to  concede,  very  recent  times  furnish  two  con- 
spicuous illustrations  of  its  truthfulness.  They  are  the  sup- 
pression of  the  rebellion  in  the  United  States  in  1865,  and  the 
conquest  of  Alsace-Lorraine  in  1870-71.  The  vigor  of  the 
military  rule  established  in  the  latter  instance  and  the  remodel- 
ing of  ancient  institutions,  that  thereby  might  permanently 
be  secured  to  Germany  what  her  arms  had  won,  do  but  evince 
the  earnestness  of  purpose  with  which  these  measures  were 
adopted,  and  emphasize  the  severe  nature  of  the  laws  of  con- 
quest. Dissertations  on  the  abstract  rights  of  the  conquered 
would  have  little  availed  the  people  of  these  provinces.  The 
government,  even  the  municipal  laws  so  far  as  deemed  desirable, 
was  recast  in  the  iron  mould  of  their  traditional,  warlike 
enemy,  now  become  their  masters.  And  yet  who  will  assert 
that  all  this  was  not  necessary  if  the  subjugated  territory  was  to 
remain  to  the  conquerors  ? 

With  regard  to  the  course  pursued  by  the  United  States  au- 
thorities in  1865,  and  subsequently  towards  citizens  of  States  in 
which  rebellion  had  recently  been  suppressed,  it  is  to  be  re- 
marked that  when  the  civil  war  ended,  military  government  was 
continued  over  the  rebel  territory  with  a  suspension  of  the 
privilege  of  the  writ  of  habeas  corpus  until  the  civil  authority  of 
the  republic  could  be  fully  restored.  An  entire  political  and 
civil  restitution  was  not  completed  until  the  civil  tribunals  of 
the  government  could  exercise  their  authority  peacefully  within 
the  limits  of  each  State  and  the  functions  of  that  government 
be  fully  discharged.     This  required,  by  the  free  system  of  the 


WHEN   MILITARY   GOVERNMENT   CEASES.  289 

United  States,  a  loyal  co-operation  of  the  people  who  exercised 
political  power  within  each  State,  since  they  must  hold  many 
of  the  offices  and  compose  the  juries  for  the  trial  of  all  offences. 
It  was  also  necessary  that  the  State  governments  should  be  in 
active  operation  in  conformity  with  and  subordination  to  the 
Constitution  of  the  United  States,  not  only  for  the  administra- 
tion of  the  internal  affairs  of  each  State,  but  to  enable  the 
people  of  the  State  to  have  their  share  in  the  administration  of 
the  affairs  of  the  republic.  Until  these  results  were  reached, 
the  regions  of  country  then  recently  in  rebellion,  with  their  in- 
habitants, were  held  under  the  forcible  or  military  rule  of  the 
republic  so  far  as  was  necessary,  though  it  was  exercised  to  a 
great  extent  by  civil  officers  and  civil  methods.1 

It  was  judicially  determined  that  the  civil  war  did  not  begin 
or  terminate  at  the  same  time  in  all  the  insurrectionary  States.2 
Its  commencement  in  certain  States  was  referred  to  the  Presi- 
dent's proclamation  of  blockade  embracing  them,  dated  April 
19,  1861,  and  as  to  others  his  second  blockade  proclamation 
embracing  them  dated  April  27,  1861  ;  while  its  termination 
as  to  certain  States  was  referred  to  the  proclamation  of  April 
2,  1866,  declaring  that  the  war  had  closed  in  those  States  ;  and 
as  to  Texas,  to  the  proclamation  of  20th  August,  1866,  declar- 
ing it  had  closed  in  that  State  also. 

The  last  rebel  army  surrendered  in  May,  1865.  Thus  a  year 
elapsed  after  all  resistance  in  the  field  had  ceased  before  the 
President  announced  that  the  war  had  terminated  as  to  any 
portion  of  the  conquered  territory,  which  during  this  time  was 
occupied  and  in  effect  governed  by  the  national  forces.  The 
status  of  affairs  existing  during  this  time  was  well  described  by 
the  Chief  Justice  in  delivering  the  opinion  of  the  Supreme  Court 
in  the  case  of  I,amar  v.  Browne.  Active  hostilities  in  Georgia 
terminated  about  April,  1865.  In  August  of  that  year  some 
cotton  stored  at  Thomasville  in  that  State  was  seized  by  the 
United  State  military  officers  and  turned  over  by  them  to  the 
Treasury  Department.  In  the  action  (trover)  brought  to  re- 
cover the  value  of  the  property,  the  position  was  taken  by  plain- 
tiff that  as  armed  resistance  had  long  since  ceased,  the  cotton 
at  the  time  it  was  taken  possession  of  was  not  liable  to  hostile 

1.  Wheaton,  Dana's  note,  32.  2.   12  Wallace,  700  ;  15  Wallace,  177. 


290  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

seizure.  "  It  is  true,"  said  the  Chief  Justice,  "  as  claimed  that 
when  the  seizure  was  made,  active  hostilities  in  Georgia  had 
entirely  ceased.  The  last  organized  army  of  the  rebellion  east 
of  the  Mississippi  had  surrendered  almost  two  months  before, 
and  a  very  large  portion  of  the  national  forces  had  been  dis- 
banded. The  blockade  had  been  raised,  and  trade  and  com- 
mercial intercourse  in  that  part  of  the  insurgent  territory  again 
authorized;  but  still,  in  fact,  a  state  of  war  existed,'"  '  and 
therefore  the  military  forces  were  clearly  acting  within  the 
general  scope  of  their  powers  in  taking  possession  of  property 
used  to  aid  the  rebellion.2 

The  experience  of  the  United  States  Government,  therefore, 
but  adds  to  the  evidence  derivable  almost  universally  from  the 
history  of  other  nations,  that  military  government  ceases  at 
the  pleasure  of  him  who  instituted  it  upon  such  conditions  as 
he  elects  to  impose,  and  that  its  termination  is  not  in  point  of 
time  coincident  either  necessarily  or  generally  with  the  cessa- 
tion of  hostilities  between  the  contending  belligerents. 

1.  92  U.  S.,  193.  2.  1  Knapp,  P.  C,  316. 


MARTIAL    DISTINGUISHED    FROM   MILITARY   LAW.  29I 


PART  II— MARTIAL  LAW. 


CHAPTER  I. 

MARTIAL   DISTINGUISHED    FROM    MILITARY    LAW. 

Martial  law  is  that  rule  which  is  established  when  civil  au- 
thority in  the  community  is  made  subordinate  to  military  either 
in  repelling  invasion  or  when  the  ordinary  administration  of  the 
laws  fails  to  secure  the  proper  objects  of  government. 

It  is  at  once  both  a  domestic  and  an  unwritten  law.  It  is 
exercised  over  districts  of  that  country  only  whose  military 
authorities  enforce  it,  and  the  limits  prescribed  for  that  exercise 
are  not  often  the  subject  of  statutory  regulation.  When  armies 
operate  in  enemy  territory  the  enforcement  of  corresponding 
authority  is,  as  we  have  seen,  correctly  designated  Military 
Government. 

Martial  law  has  its  foundation  in  reason.  It  is  but  a  develop- 
ment of  the  principles  of  the  common  law, '  which  latter,  how- 
ever, contemplating  as  it  does  the  maintenance  of  order  and 
the  preservation  of  society  by  unaided  civil  authority,  or,  at 
most,  such  authority  aided  by  strictly  subordinate  military 
forces,  is  not  suited  to  the  more  trying  and  turbulent  times 
either  of  invasion  or  rebellion. 

The  term  is  sometimes,  though  erroneously,  used  as  synony- 
mous with  military  law.  While  martial  law,  however,  is  un- 
written, the  military  law  of  the  land  is  found  in  the  statute 
books  and  the  customs  of  the  service. 

It  is  from  England  that  the  United  States  derived  both  of 
these  terms,  as  it  has  the  common  law,  and  the  fundamental 
principles  of  its  jurisprudence.  In  the  former  country  the 
term  martial  law  has,  in  the  progress  of  time,  changed  its  sig- 

I.  Hare's  American  Constitutional  Law,  vol.  2,  pp.  954~'5. 


292  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

nification.  From  earliest  periods  of  which  we  have  authentic 
record  the  sovereigns  of  England,  when  engaged  in  wars,  found 
regulations  for  the  government  of  their  troops  necessary. 
These  regulations  were  what  the  kings  chose  to  make  them. 
They  constituted  the  '  martial  law  '  of  those  early  days,  and 
were  properly  applicable  only  to  soldiers  while  embodied  as 
such,  and  to  retainers  of  the  camp  ;  just  as  in  the  United  States 
the  militia  of  the  several  States,  when  called  into  the  service  of 
the  general  government,  are  subject  to  the  rules  and  articles  of 
war,  but  are  not  so  at  other  times. 

During  this  period  of  her  history  England  had  no  standing 
army.  Every  freeman  was  a  soldier.  Each  warlike  occasion 
brought  the  knights  and  their  retainers  to  the  field,  60,000  of 
the  former  being  bound  by  free -hold  tenures  to  respond  for 
forty  days  each  year  to  the  sovereign's  call  to  arms.  It  was  of 
the  rules  for  the  government  of  these  forces  that  Hale  in  his 
history  of  the  common  law  remarks  :  ' '  The  kings  of  the  realm, 
preparatory  to  an  actual  war,  were  used  to  impose  rules  and 
orders  for  the  due  order  of  their  soldiers  together  with  certain 
penalties  on  the  offenders,  and  this  was  called  martial  law. 
But  touching  martial  law,  it  is  to  be  observed  that  in  truth  and 
reality  it  is  not  a  law,  but  something  indulged  rather  than  al- 
lowed as  law  ;  the  necessity  of  good  order  and  discipline  in  an 
army  is  that  only  which  gives  these  laws  a  countenance." 

The  term  martial  law  as  here  used  was  not  inappropriate. 
It  meant  the  rule  of  the  military  as  distinguished  from  that  of 
the  civil  authorities.  It  signified  the  discipline  of  the  camp, 
where  the  laws  of  peace  were  inadequate  either  to  maintain  or- 
der among  the  soldiers  themselves,  or  to  protect  the  community 
against  their  rude  violence.  It  was  applicable  only  to  those  in 
martial  array  or  their  attendants. 

To  martial  law  as  here  restricted  by  the  common-law  his- 
torian objection  could  not  fairly  be  urged  ;  it  was  a  necessity, 
without  which  neither  invasion  could  be  driven  back  nor  insur- 
surrection  suppressed.  But  years  wrought  the  before-men- 
tioned change  in  the  signification  of  the  term.  The  lines 
drawn  between  classes  of  the  people  in  England  were  at  once 
marked  and  profound.  The  rise,  progress,  and  finally,  to  a 
considerable  extent,  the  obliteration  of  these  deeply  implanted 
distinctions  form  one  of  the  most  interesting  and  instructive 


MARTIAL   DISTINGUISHED   FROM   MILITARY   LAW.  293 

chapters  in  the  history  of  that  nation.  The  serfs  and  villeins 
often  rose  in  rebellion,  not  by  preconcerted  movement,  but 
urged  on  by  a  common  and  intense  hatred  of  the  classes  above 
them.  There  was  no  civil  power  in  the  land  capable  of  sup- 
pressing these  uprisings.  As  just  mentioned,  the  sovereign 
had  not  at  command  the  strong  right  arm  of  a  regularly  organ- 
ized military  force.  On  such  occasions  the  need  of  a  regular 
army  was  severely  felt.  The  large  number  of  the  turbulent 
and  discontented  rendered  it  impracticable  for  the  ordinary 
officers  of  government  to  overthrow  and  bring  to  justice  open, 
defiant  disturbers  of  the  peace. 

In  these  emergencies  resort  was  had  to  what  was  termed 
martial  law  to  supplement  the  inadequate  powers  of  civil  govern- 
ment. But  it  no  longer  meant,  as  in  former  periods,  those  rules 
adopted  for  the  control  of  the  army  when  actually  brought  into 
the  field  ;  martial  law  was  now  being  applied  to  a  different  por- 
tion of  the  community,  and  in  this  new  sense  the  term  was 
simply  descriptive  of  that  mode  of  procedure  resorted  to  by 
the  sovereign  during  the  supression  of  a  rebellion  too  formid- 
able for  the  civil  authorities  to  put  down. 

Whenever  there  was  any  insurrection  or  public  disorder  the 
crown  employed  martial  law,  and  it  was  exercised  not  only 
over  soldiers  but  the  whole  people.  Any  one  might  be  pun- 
ished as  a  rebel  or  an  aider  or  abettor  of  rebellion  whom  the 
provost  marshal  or  lieutenant  of  a  county  or  their  deputies 
pleased  to  suspect.  Lord  Bacon  said  that  the  trial  at  common 
law  granted  to  Essex  and  his  fellow-conspirators  was  a  favor, 
for  that  the  case  would  have  borne  and  required  the  severity  of 
martial  law.1 

But  it  was  the  acts  of  Charles  the  First  which  at  once  carried 
the  exercise  of  this  undefined  power  to  its  limit  and  led  to  its 
restriction  by  Parliament.  The  want  of  respect  for  the  laws  of 
the  land,  arising  doubtless  from  the  suffering  and  attendant 
discontent  of  the  people  which  characterized  the  reign  of  that 
fated  monarch,  seemingly  rendered  resort  to  stringent  measures 
of  repression  necessary.  Accordingly  commissions  were  issued 
to  certain  trusted  servants  of  the  crown,  empowering  them  to 
inflict  the  death  penalty  upon  soldiers  or  other  dissolute  persons 

1.  Hume,  Hist.  Eng.,  vol.  5,  app'x,  3,  p.  402. 


294  MILITARY   GOVERNMENT  AND    MARTIAL  LAW. 

who  should  commit  robberies  and  similar  crimes  according  to 
the  summary  practices  of  martial  law.  Times,  measures,  and 
men,  however,  had  changed,  and  whatever  the  people  might 
have  been  willing  to  put  up  with  from  the  iron  hand  of  a 
Tudor,  they  were  not  prepared  quietly  to  acquiesce  in  this 
stretch  of  royal  authority  when  attempted  by  a  Stuart  in  the 
person  of  the  insincere,  vacillating,  and  tyrannical  Charles. 
The  Petition  of  Right  followed  quickly,  by  which  at  one  blow 
was  struck  down  then  and  apparently  for  all  time  every  pre- 
tense of  authority  for  invoking  martial  law  within  the  realm  in 
time  of  peace. 

It  was  here  declared,  in  what  has  been  truly  designated  one 
of  the  land-marks  of  English  liberty,  that  no  man  ought  to  be 
judged  to  death  but  by  the  laws  established  either  by  custom 
or  acts  of  Parliament.  The  circumstance  was  then  narrated  of 
the  appointment  of  the  commissions  under  the  royal  seal  to 
proceed  against  such  soldiers,  mariners,  and  dissolute  persons 
joining  them  as  should  commit  murder,  robbery,  felony,  mutiny, 
or  other  outrage  or  misdemeanor  whatsoever,  by  such  summary 
course  and  order  as  was  agreeable  to  martial  law  and  was  used 
in  armies  in  time  of  war.  This  was  declared  to  be  illegal,  and 
it  was  prayed  that  these  commissions  might  be  revoked  and  an- 
nulled, and  that  thereafter  none  of  like  nature  might  be  issued. 
By  the  favorable  action  of  the  king,  the  Petition  of  Right  be- 
came (1627)  the  law  of  the  land  ;  and  subsequently  the  exer- 
cise of  martial  law  according  to  the  technical  meaning  of  that 
term  in  time  of  peace  within  the  realm  has  been  interdicted.1 

' '  What, ' '  said  a  profound  lawyer  and  jurist,2  ' '  is  martial  law  ? 
It  is  the  will  of  a  military  commander  operating  without  any 
restraint,  save  his  judgment,  upon  the  lives,  upon  the  property, 
upon  the  entire  social  and  individual  condition  of  all  over  whom 
this  law  extends.  But,  under  the  Constitution  of  the  United 
States,  over  whom  does  this  law  extend  ? 

******* 

' '  In  time  of  war,  a  military  commander,  whether  he  be 
the  commander-in-chief  or  one  of  his  subordinates,  must  pos- 
sess and  exercise  powers  both  over  the  persons  and  property 
of  citizens  which  do  not  exist  in  time  of  peace.     But  he  pos- 

1.  Manual,  pp.  5,  6,  787.  2.  Ex- Associate  Justice  of  the  Supreme 

Court  of  th  .  United  States,  R.  B.  Curtis. 


MARTIAL   DISTINGUISHED   FROM   MILITARY  LAW.  295 

sesses  and  exercises  such  powers,  not  in  spite  of  the  Consti- 
tution and  laws  of  the  United  States,  or  in  derogation  from 
their  authority,  but  in  virtue  thereof  and  in  strict  subordina- 
tion thereto  The  general  who  moves  his  army  over  private 
property  in  the  course  of  his  operations  in  the  field,  or  who 
impresses  into  the  public  service  means  of  transportation  or 
subsistence  to  enable  him  to  act  against  the  enemy,  or 
who  seizes  persons  within  his  lines  as  spies,  or  destroys  sup- 
plies in  immediate  danger  of  falling  into  the  hands  of  the 
enemy,  uses  authority  unknown  to  the  Constitution  and  laws 
of  the  United  States  in  time  of  peace,  but  not  unknown  to 
the  Constitution  and  those  laws  in  time  of  war.  The  power 
to  declare  war  includes  the  power  to  use  the  customary  and 
necessary  means  effectively  to  carry  it  on.  As  Congress  may 
institute  a  state  of  war,  it  may  legislate  into  existence  and 
place  under  executive  control  the  means  for  its  prosecution. 
And  in  time  of  war,  without  any  special  legislation,  not  the 
commander-in-chief  only,  but  every  commander  of  an  expedi- 
tion or  of  a  military  post  is  lawfully  empowered  by  the  Consti- 
tution and  laws  of  the  United  States  to  do  whatever  is  neces- 
sary and  is  sanctioned  by  the  laws  of  war  to  accomplish  the 
lawful  objects  of  his  command. 

' '  But  it  is  obvious  that  this  implied  authority  must  find  early 
limit  somewhere.  If  it  were  admitted  that  the  commanding 
general  in  the  field  might  do  whatever,  in  his  discretion,  might 
be  necessary  to  subdue  the  enemy,  he  could  levy  contributions 
to  pay  his  soldiers  ;  he  could  force  conscripts  into  his  serv- 
ice ;  he  could  drive  out  of  the  entire  community  all  persons  not 
desirous  to  aid  him  ;  in  short,  he  could  be  the  absolute  master  of 
the  country  for  the  time  being.  No  one  has  ever  supposed,  no 
one  will  now  undertake  to  maintain,  that  the  commander-in- 
chief,  in  time  of  war,  has  any  such  lawful  authority  as  this. 
What,  then,  is  his  authority  over  the  persons  and  property  of 
citizens  ?  I  answer  that  over  all  persons  enlisted  in  his  forces 
he  has  military  power  and  command  ;  that  over  all  persons  and 
property  within  the  sphere  of  his  actual  operations  in  the  field 
he  may  lawfully  exercise  such  constraint  and  control  as  the  suc- 
cessful prosecution  of  his  particular  militar3r  enterprise  may,  in 
his  honest  judgment,  absolutely  require  ;  and  upon  such  per- 
sons as  have  committed  offenses  against  any  article  of  war  he 


296  MILITARY   GOVERNMENT  AND   MARTIAE  EAW. 

may,  through  appropriate  military  tribunals,  inflict  the  punish- 
ment prescribed  by  law.     And  there  his  lawful  authority  ends. 

' '  The  military  power  over  citizens  and  their  property  is  a  power 
to  act,  not  a  power  to  prescribe  rules  for  future  action.  It  springs 
from  present  pressing  emergencies,  and  is  limited  by  them.  It 
can  not  assume  the  functions  of  the  statesman  or  legislator,  and 
make  provisions  for  future  or  distant  arrangements  by  which 
persons  and  property  may  be  made  subservient  to  military  uses. 
It  is  the  physical  power  of  an  army  in  the  field,  and  may  con- 
trol whatever  is  so  near  as  to  be  actually  reached  by  that  force 
in  order  to  remove  obstructions  to  its  exercise. 

' '  But  when  the  military  commander  controls  the  persons  or 
property  of  citizens  who  are  beyond  the  sphere  of  his  actual 
operations  in  the  field,  when  he  makes  laws  to  govern  their  con- 
duct, he  becomes  a  legislator.  Those  laws  may  be  made  actu- 
ally operative  ;  obedience  to  them  may  be  enforced  by  military 
power ;  their  purpose  and  effect  may  be  solely  to  support  or 
recruit  his  armies,  or  to  weaken  the  power  of  the  enemy  with 
whom  he  is  contending.  But  he  is  a  legislator  still ;  and  whether 
his  edicts  are  clothed  in  the  form  of  proclamations,  or  of  mili- 
tary orders,  by  whatever  names  they  may  be  called,  they  are  laws. 
If  he  have  the  legislative  power  conferred  on  him  by  the  peo- 
ple, it  is  well.  If  not,  he  usurps  it.  He  has  no  more  lawful 
authority  to  hold  all  the  citizens  of  the  entire  country,  outside 
of  the  sphere  of  his  actual  operations  in  the  field,  amenable 
to  his  military  edict  than  he  has  to  hold  all  the  property  of 
the  country  subject  to  his  military  requisitions.  He  is  not  the 
military  commander  of  the  citizens  of  the  United  States,  but  of 
its  soldiers."  l 

This  was  written  at  a  time  when  the  United  States  was  in  the 
midst  of  civil  war.  The  executive  had  frequently  resorted  to 
martial  law  where  the  unaided  civil  authorities  apparently  could 
not  overcome  the  difficulties  which  encompassed  them,  thereby 
rendering  necessary  the  prompt  action  of  military  power  in  or- 
der that  an  effective  blow  might  be  struck  at  the  machinations, 
both  open  and  secret,  of  those  who  were  aiding  and  abetting 
rebellion.  The  constitutional  principle  here  enunciated  that 
' '  power  to  declare  war  includes  the  power  to  use  the  customary 

1.   "  Executive  Power,"  published  Oct.,  1862. 


MARTIAL   DISTINGUISHED   FROM   MILITARY   LAW.  297 

and  necessary  means  effectively  to  carry  it  on,"  is  that  upon 
which  rests  the  right  to  invoke  martial  law  as  a  war  measure. 
But  a  mere  statement  of  the  principle,  the  truth  of  which  is  per- 
haps denied  by  none,  is  of  little  value  in  determining  when  and 
where  martial  law  legally  may  be  enforced.  The  real  difficulty 
lies  not  in  formulating,  but  in  applying  the  principle.  The 
latter  is  the  pivotal  point  upon  which  turns  the  legality  of  the 
proclamation  of  martial  law  or  its  enforcement  without  this 
formality. 

The  power  of  the  executive  to  prosecute  a  war  precipitated 
upon  the  country  carries  with  it  by  necessary  implication  the 
incidental  power  to  make  use  of  the  customary  and  necessary 
means  of  carrying  it  on  successfully.  If  he  deems  the  placing 
any  district  under  martial  law  a  proper  measure,  it  is  difficult 
logically  to  deny  him  the  right  to  do  it.  Some  one  must  judge 
of  the  necessity  ;  the  determination  of  some  authority  must  be 
final.  And  where,  with  reason,  can  be  lodged  this  discretion- 
ary power  with  greater  safety  than  with  that  branch  of  the 
Government  to  which  is  entrusted  the  conduct  of  the  war, 
and  which  is  held  responsible  for  its  successful  prosecution  ? 

The  Southern  Confederacy  during  its  brief  existence  had  an 
extensive  martial-law  experience.  As  a  result  the  principles 
underlying  the  lawful  exercise  of  this  unusual  authority  re- 
ceived careful  examination  and  exposition  by  jurists  of  ac- 
knowledged ability  In  a  letter  to  a  military  commander  from 
the  Confederate  Assistant  Secretary  of  War,  an  ex-associate 
justice  of  the  Supreme  Court  of  the  United  States,  it  was  re- 
marked that  the  proclamation  of  martial  law  in  a  locality  im- 
plies that  the  district  is  the  seat  of  war  or  rebellion,  or  that  it 
has  fallen,  or  soon  might  fall,  within  the  lines  of  military  oper- 
ations or  communication.  It  implies  that  a  more  vigorous 
policy  has  become  necessary  to  preserve  the  efficiency  of  the 
army  and  to  maintain  its  discipline,  to  secure  in  all  its  fullness 
its  energy  and  vigor  for  use  against  the  enemy,  or  it  might  im- 
ply that  such  an  emergency  has  arisen  as  to  require  an  extra- 
ordinary application  of  the  resources  of  the  population  for 
their  defence.  The  system  of  measures  and  administration  which 
is  introduced  in  such  extraordinary  and  transitory  exigencies 
involving  the  public  safety,  varies  according  to  circumstances  ; 
the  measures  and  administration  are  occasional  and  transient 


290  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

in  their  operation  as  to  time  and  limited  as  to  locality,  seldom 
proceeding  from  the  supreme  power  of  the  State,  or  affecting 
the  constitution  of  the  body  politic,  not  often  necessarily  im- 
peding municipal  administration.  Continuing,  it  was  observed, 
that  a  city,  the  capital  of  a  State  or  nation,  the  depository  of 
its  government  and  archives,  the  site  of  its  workshops,  arsenals, 
hospitals,  magazines,  and  munitions,  with  an  insufficient  army 
for  its  defence,  and  a  wavering  population  beleagured  by  a 
powerful  and  bitter  enemy,  who  would  make  its  goods  a  booty 
and  its  houses  a  desolation,  surely  must  be  subject  to  condi- 
tions as  to  government  and  police  dissimilar  from  that  of  a  city 
sheltered  against  danger  from  any  quarter. 

These  regulations  not  existing,  but  called  for  by  extraordi- 
nary circumstances,  it  was  held,  would  find  their  authority  in  the 
power  of  the  executive  to  use  the  military  forces  of  the  nation 
to  repel  invasions,  and  to  adopt  the  measures  requisite  to  em- 
ploy those  forces  with  the  utmost  advantage  to  that  end.  In 
the  fulfillment  of  this  office  he  might  not  make  unreasonable  or 
vexatious  searches  or  seizures,  nor  unduly  restrain  liberty  or 
take  life,  but  the  same  act  might  be  reasonable  at  one  time  and 
under  one  class  of  circumstances,  and  vexatious  and  wrongful 
under  another.  In  all  his  proceedings  he  and  his  agents  are 
responsible  for  acts  not  justified  in  the  scope  of  his  public  duty. 

' '  In  the  war  in  which  we  are  engaged, ' '  observed  the  same 
official  at  another  time,  "circumstances  are  assembled  which 
have  scarcely  ever  been  seen  before  together.  The  entire  military 
population  has  been  appropriated  by  law  for  the  public  defence, 
and  before  another  year  expires  probably  all  will  be  called  into 
service.  Our  enemy  is  seeking  to  find  an  ally  in  those  in  our 
own  household  and  to  add  a  servile  to  the  horrors  of  a  civil 
war.  Civil  administration  is  everywhere  relaxed  and  has  lost 
much  of  its  energy,  and  our  entire  confederacy  is  like  a  city  in 
a  state  of  siege,  cut  off  from  all  intercourse  with  foreign  nations, 
and  invaded  by  superior  force  at  every  available  point.  Mili- 
tary administration  at  such  places  as  are  within  the  scope  of 
military  operations  and  supplies  and  upon  the  lines  of  military 
communication,  in  the  very  nature  of  the  situation,  must  have 
a  liberal  extent.  In  so  far  as  it  affects  citizens  who  do  not  be- 
long to  the  army,  it  should  be  marked  with  sobriety,  discretion, 
and  deference  for  personal  rights.     No  advantage  should  be 


MARTIAL   DISTINGUISHED    FROM    MILITARY    LAW.  299 

taken  by  the  exigencies  of  the  time  to  inflict  any  injustice.  In 
respect  to  the  city  of  Atlanta  there  can  be  but  little  difficulty 
in  proceeding  upon  the  principles  here  laid  down.  The  object 
of  the  proclamation  [of  martial  law]  there  was  to  secure  the 
safety  of  the  hospitals,  public  stores,  railroad  communications, 
the  discipline  of  the  troops  in  transitu,  and  to  collect  desert- 
ers and  absentees  along  railroads  and  guard  against  espion- 
age on  the  part  of  the  enemy.  The  provost  guard  was  placed 
there  to  enable  the  officer  to  accomplish  these  objects,  and  the 
regulations  to  be  adopted  must  be  suitable  to  these  ends.  In 
accomplishing  them  some  regulation  of  that  unlimited  freedom 
of  intercourse  and  traffic  which  exists  in  time  of  peace  has 
been  found  to  be  proper,  and  some  expropriation  of  private 
property  for  public  use  essential ;  but  it  has  been  the  anxious 
desire  of  this  department  that  no  substantial  invasion  of  the 
great  principles  of  constitutional  liberty  should  occur;  that  no 
injustice  should  be  suffered,  and  that  as  little  of  personal  in- 
convenience endured  as  circumstances  would  permit."  ' 

These  views  regarding  the  enforcement  of  martial  law  as  an 
incident  to  the  prosecution  of  hostilities  are  particularly  valua- 
ble. They  are  not  the  vagaries  of  the  theorist,  but  deliberately 
formed  opinions,  given  under  official  responsibility  when  cir- 
cumstances rendered  martial  law  a  practical,  however  unwel- 
come, necessity.  No  people  ever  were  more  jealous  of  their  con- 
stitutional rights  than  were  those  of  the  Southern  Confederacy. 
But,  as  here  evidenced,  there  arose  occasions  when,  even  with 
them,  it  was  acknowledged  that  the  rights  of  the  few  must 
sometimes  give  way  to  the  preservation  of  the  many,  and  that 
military  power  can  properly  be  invoked  when  civil  authority 
can  not  meet  the  ends  of  government. 

It  is  worthy  of  special  notice  that  the  city  of  Atlanta,  at  the 
time  referred  to,  when  martial  law  there  was  declared  and  here 
justified,  was  not  the  immediate  theatre  of  military  operations, 
or  immediately  adjacent  thereto,  although,  being  a  great  cen- 
ter of  military  communication,  it  was  an  important  strategic 
point.  The  evidence  of  this  distinguished  judge,  whose  predi- 
lections were  all  in  favor  of  the  supremacy  of  the  civil  power, 
is  therefore  contradictory  of  the  principle  insisted  upon  by  some 

1.  Oct.  27,  1862.     (R.  R.  S.,  1,  vol.  16,  part  II,  p.  979,  et  seq.) 


300  MILITARY    GOVERNMENT  AND   MARTIAL   LAW. 

that  to  justify  martial  law  the  district  affected  must  actually 
be  resounding  with  the  clash  of  arms. 

In  the  nature  of  things  the  limitation  of  martial  law  to  such 
districts  can  not  be  correct.  As  will  more  fully  appear  here- 
after, necessity  alone  justifies  resort  to  this  extreme  measure. 
It  is  the  test  by  which  those  responsible  for  its  enforcement 
must  be  judged.  Look  at  the  matter  which  way  we  will,  it 
comes  to  that  at  last.  While  this  necessity  will  almost  inev- 
itably arise  in  districts  occupied  by  contending  armies,  it  by  no 
means  follows  that  it  will  be  confined  to  such  districts. 

When  instituted  because  of  civil  commotion,  martial  law 
is  confined  to  the  disturbed  district.  But  in  this  case,  equally 
as  when  a  war  measure,  the  true  test  of  justification  being 
necessity,  it  follows  logically  that  martial  law  is  legal  when- 
ever the  civil  authorities,  acting  either  alone  or  with  the  as- 
sistance of  a  subordinate  military  force,  can  not  properly  per- 
form the  functions  of  government.  Not  to  resort  to  this  law 
under  such  circumstances  would  be  criminal,  as  without  it 
life  and  property  would  be  placed  at  the  mercy  of  the  lawless. 

If  it  be  asked  what  security  exists  against  abuse  of  this  sum- 
mary military  authority,  the  answer,  as  before  pointed  out,  is  in 
the  amenability  of  those  exercising  it  not  only  to  military  supe- 
riors, but  also  before  the  civil  tribunals  of  the  country  when 
peace  and  order  again  resume  their  sway.  This,  it  will  be  no- 
ticed, is  carefully  laid  down  by  the  authority  just  quoted. 

Note  — Among  the  manuscripts  of  the  late  Dr.  Francis  Lieber  was  found, 
after  his  death,  one  on  the  subject  of  martial  law,  written  in  the  form  of 
a  note  to  the  fifth  and  sixth  articles  of  "  The  Instructions  for  the  Govern- 
ment of  the  Armies  of  the  United  States  in  the  Field  "  (G.  O.  ioo,  1863). 
After  distinguishing  between  martial  law  in  hostile  countries  and  domes- 
tic martial  law  be  says  :  "  As  to  martial  law  at  home,  which  may  become 
necessary  in  cases  of  foreign  invasion,  as  well  as  in  cases  of  domestic 
troubles,  it  has  full  sway  in  the  immediate  neighborhood  of  actual  hos- 
tilities. The  military  power  may  demolish  or  seize  property  or  may  ar- 
rest persons,  if  indispensable  for  the  support  of  the  army  or  the  attaining 
of  the  military  objects  in  view.  This  arises  out  of  the  immediate  and 
direct  physical  necessity,  as  much  so  as  the  law  of  trespass  is  inoperative 
against  those  who  forcibly  enter  a  house  in  case  of  a  conflagration.  This 
operation  of  martial  law  is  not  exclusive  or  exceptional.  Any  immediate 
physical  danger,  and  paramount  necessity  arising  from  it,  dispenses  with 
the  forms  of  law  most  salutary  in  a  state  of  peace. 


MARTIAL   DISTINGUISHED    FROM    MILITARY   LAW.  301 

The  term  martial  law  imports  a  departure  from  the  usual  or- 
der of  things.  It  does  not  mean  the  administration  of  the  ordi- 
nary law  in  a  summary  way,  but  it  is  a  totally  different  law. 
It  has  been  used  by  all  governments  and  in  all  countries,  and 
is  as  necessary  to  the  sovereignty  of  a  State  as  the  power  to  de- 
clare and  make  war.  The  right  to  declare,  apply,  and  enforce 
martial  law  is  one  of  the  sovereign  powers,  and  resides  in  the 
governing  authority  of  the  State,  and  it  depends  upon  the  consti- 
tution of  the  State  whether  restrictions  and  rules  are  to  be 
adopted  for  its  application,  or  whether  it  is  to  be  exercised 
according  to  the  exigencies  which  call  it  into  existence.  But 
even  when  left  unrestrained  by  constitutional  or  statutory  law, 
like  the  power  of  a  civil  court  to  punish  contempts,  it  must  be 
exercised  with  due  moderation  and  justice  ;  and  as  paramount 
necessity  alone  can  call  it  into  existence,  so  must  its  exercise  be 
limited  to  such  times  and  places  as  this  necessity  may  require  ; 
and,  moreover,  it  must  be  governed  by  the  rules  of  general  pub- 
lic law,  as  applied  to  a  state  of  war.     It,  therefore,  can  not  be 

"The  subject  of  the  greatest  difficulty  connected  with  martial  law  is  its 
existence  in  a  country  distant  from  the  scene  of  military  action  or  in  dis- 
tricts which  are  not  in  a  state  of  insurrection.  How  far  may  it  extend  in 
point  of  geographical  limits  ?  How  far  may  it  extend  in  intrinsic  action  ? 
Can  it  be  dispensed  with  under  all  circumstances  ?  How  can  people  de- 
voted to  liberty  limit  its  action  so  that  it  may  not  become  a  means  of  mili- 
tary despotism  ? 

"  It  can  not  be  dispensed  with  under  all  circumstances,  and  if  there 
were  a  law  prohibiting  it,  it  would  break  through  the  law  in  cases  of 
direct  and  absolute  necessity.  The  salvation  of  a  country  is  like  the  sav- 
ing of  an  individual  life.     It  is  paramount  to  all  else.     *     * 

"  It  has  been  denied  that  the  government  has  any  right  to  proclaim 
martial  law  or  to  act  according  to  its  principles  in  districts  distant  from 
the  field  of  action,  or  to  declare  it  in  larger  districts  than  either  cities  or 
counties.  This  is  fallacious.  The  only  justification  of  martial  law  is  the 
danger  to  which  the  country  is  exposed,  and  as  far  as  the  positive  danger 
extends,  so  far  extends  its  justification."  (Ives'  Military  Law,  p.  13, 
note  ) 

Regarding  the  last  point  here  touched  upon.  Whiting  (War  Powers,  10th 
edition,  p.  169)  says  :  Nothing  in  the  Constitution  or  laws  can  define  the 
possible  extent  of  any  military  danger  Nothing,  therefore,  in  either  of 
them  can  fix  or  define  the  extent  of  power  necessary  to  meet  the  emer- 
gency. Hence  it  is  worse  than  idle  to  attempt  to  lay  down  rules  defining 
what  must  be  the  territorial  limits  of  martial  law. 


302  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

despotically  or  arbitrarily  exercised  any  more  than  any  other 
belligerent  right  can  be  so  exercised. ' ' J 

The  distinguished  publicist  had  reference  here  to  martial  law 
considered  solely  as  a  war  measure,  hence  his  reference  to  the 
exercise  of  belligerent  rights.  Martial  law  to  meet  civil  com- 
motion was  not  adverted  to.  The  laws  of  different  countries 
with  respect  to  this  power  are  different.  In  France,  and  in 
most  other  states  of  Continental  Europe,  three  conditions  of 
society  are  carefully  provided  for  :  the  state  of  peace,  where  all 
are  governed  by  civil  or  military  authority,  depending  upon  the 
class  to  which  they  belong  ;  the  state  of  war,  where  the  law  and 
authority  depend  upon  the  particular  condition  of  the  place  and 
circumstances  of  the  case,  the  civil  authority  sometimes  acting 
in  concert  with,  and  sometimes  in  subordination  to,  the  mili- 
tary ;  the  state  of  siege,  where  the  civil  law  is  suspended  for  the 
time  being,  or,  at  least,  is  made  subordinate  to  the  military,  and 
the  place  is  under  martial  law,  or  under  the  authority  of  the 
military  power.  The  latter  may  result  from  the  presence  of  a 
foreign  enemy,  or  by  reason  of  a  domestic  insurrection,  and  the 
rule  applies  to  a  district  of  country  as  well  as  to  a  fortress  or 
city.  The  state  of  siege  corresponds  to  martial  law  in  England 
and  the  United  States.2  There  is,  however,  this  important  dis- 
tinction :  what  lawfully  may  be  done  under  a  state  of  siege  is 
fixed  by  statute,  while  martial  law — subject  to  individual  re- 
sponsibility for  its  enforcement,  as  before  mentioned — is  a  rule 
unto  itself. 

The  histories  of  both  England  and  the  United  States  afford 
many  illustrations  of  resort  being  had  with  both  legislative  and 
judicial  sanction  to  martial  law  when  the  civil  authorities  were 
unable  to  preserve  order,  secure  the  liberty  of  the  subject,  and 
protect  him  in  his  life  and  property.  "  For,"  as  observed  by  an 
English  writer,3  "no judicial  decisions  can  alter  the  fact  that 
the  application  of  military  government,  under  the  law  of 
necessity,  commonly  called  martial  law,  must  always  exist,  al- 
though it  is  difficult  to  exactly  define  it  further  than  as  being 
the  authority  exercised  by  a  military  commander  over  all  per- 
sons, whether  civil  or  military,  within  the  precincts  of  his  com - 

i.  Halleck,  chap.   17,  sec.  25  ;  see  also  O'Brien,  American  Military  Law, 
p.  28.  2.  Appendix,  V.  3.  Pratt's  Military  Law,  p.  214. 


MARTIAL   DISTINGUISHED    FROM    MILITARY   LAW.  303 

mand  in  places  where  there  is  either  no  civil  judicature  or  this 
has  ceased  to  exist. ' ' 

Regarded  as  a  belligerent  right,  to  be  exercised  under  the 
customs  of  war  in  repelling  invasion,  martial  law  is  that  mili- 
tary rule  and  authority  which  exists  in  relation  to  persons  and 
things  under  and  within  the  scope  of  active  military  operations, 
and  which  extinguishes  or  suspends  civil  rights  and  the  reme- 
dies founded  upon  them,  for  the  time  being,  so  far  as  it  may 
appear  to  be  necessary  in  order  to  the  full  accomplishment  of 
the  purposes  of  the  war — the  party  who  exercises  it  being  liable 
in  an  action  for  any  abuse  of  the  authority  thus  conferred.  It 
is  the  instituting  over  our  own  people  the  government  of  force, 
extending  to  persons  and  property,  according  to  the  laws  and 
usages  of  war,  to  the  exclusion  of  the  municipal  government, 
in  all  respects  where  the  latter  would  impair  the  efficiency  of 
military  rule  and  military  action.  Founded  upon  the  neces- 
sities of  war,  and  limited  by  them,  its  existence  does  not  neces- 
sarily suspend  all  civil  proceedings.  Contracts  may  still  be 
made  and  be  valid  so  long  as  they  do  not  interfere  with  or  af- 
fect military  operations.  The  civil  courts  are  not  necessarily 
closed,  for  all  actions  relating  merely  to  the  private  affairs  of 
individuals  may  still  be  entertained  without  detriment  to  the 
public  service  ;  but  it  closes  the  consideration  there  of  any 
action,  suit,  or  proceeding  in  which  the  civil  process  would  im- 
pair the  efficiency  of  the  military  force.1 

The  military  authorities  where  martial  law  is  instituted 
must  in  any  case  judge  in  the  first  instance  of  its  necessity. 
Still,  the  power  they  wield  is  restricted  to  the  scope  of  the  ne- 
cessity which  it  has  been  determined  exists  ;  so  that  if  an  ar- 
bitrary force  be  used,  having  no  connection  with  the  exigency, 
or  not  within  its  possible  scope,  the  party  responsible  may  be 
held  civilly  to  account  for  his  acts.  If  the  commander  should 
go  beyond  what  is  necessary,  to  commit  a  private  wrong  dis- 
connected from  military  operations,  the  existence  of  martial 
law  would  not  excuse  him  from  accountability  afterwards  be- 
fore a  judicial  tribunal. 

Turning  now  to  the  case  when  martial  law  is  invoked  to  sup- 
press revolt  against  municipal  authority,  the  remarks  of  the 

I.  Professor  Parker,  N.  A.  Review,  Oct.,  1861. 


304  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

judge-advocate  general  before  the  House  of  Commons  commit- 
tee in  the  Ceylon  investigation  are  instructive.  He  there  de- 
clared that  martial  law,  properly  so-called,  is  not  written,  but 
unwritten  law  ;  it  arises  from  necessity  to  be  judged  of  by  the 
executive;  it  comprises  all  persons,  civil  or  military,  and  is  to  be 
executed  by  those  who  have  to  execute  it,  and  faithfully,  with 
as  much  humanity  as  the  occasion  allows,  and  according  to  the 
their  sense  and  conscience.  The  proclamation  of  martial  law  is 
a  notice  to  all  those  to  whom  it  is  addressed  that  there  is  an- 
other measure  of  law  and  another  mode  of  proceeding  than 
there  was  before,  and  when  maitial  law  is  proclaimed  there  is 
no  rule  or  law  by  which  the  officers  executing  it  are  to  be 
bound.  It  is  more  extensive  than  ordinary  military  law,  and 
overrules  all  other  law  and  is  entirely  arbitrary.  There  is  no 
regular  practice  laid  down  in  any  work  on  military  law  as  to 
how  courts-martial  are  to  be  conducted  or  powers  exercised  un- 
der martial  law,  but,  as  a  rule,  he  would  say  that  it  should  ap- 
proximate as  near  as  possible  to  the  regular  forms  and  course 
of  justice  and  the  usages  of  the  military  service.1 

This  opinion  was  a  carefully  considered  statement  of  the 
judge-advocate  general's  view  of  the  subject  then  under  con- 
sideration. Yet  the  assertion  that  the  power  exercised  under 
martial  law  is  entirely  arbitrary  is  liable  to  mislead.  It  cannot 
be  meant  by  this  that  the  authority  there  exercised  by  the  mili- 
tary is  despotic  and  irresponsible,  nor  even  that  responsibility 
is  limited  to  accountability  to  military  superiors  alone.  And 
herein  lies  the  safety  of  the  community. 

It  is  true  that  some  expressions  of  military  commanders  and 
recognized  authorities  on  the  law,  detached  from  their  context 
and  hence  in  great  degree  misapplied,  give  color  to  the  view 
that  officers  are  not  legally  responsible  for  their  acts  under  these 
circumstances;  for  instance,  the  statement  of  the  Duke  of  Wel- 
lington that  "martial  law  is  the  will  of  the  commander-in- 
chief  ;  "  of  Ivord  Hale,  that  "  it  was  in  truth  and  fact  no  law  at 
all,  but  something  indulged  rather  than  law  ;  "  of  Blackstone, 
that  "  it  is  built  upon  no  settled  principles,  but  is  entirely  ar- 
bitrary in  its  decisions  ;  "  or  that  "  it  is  an  arbitrarj'  kind  of 
law  or  rule  sometimes  established  in  a  place  or  district  occupied 

1.  Finlason,  Repression  of  Riot  and  Rebellion,  pp.  i35-'6,  195. 


MARTIAL   DISTINGUISHED    FROM    MILITARY   LAW.  305 

or  controlled  by  an  armed  force,  by  which  the  civil  authority 
and  the  ordinary  administration  of  the  law  are  either  wholly 
suspended  or  subjected  to  military  power."  l 

But  not  one  of  these  authorities  gives  countenance  to  the 
proposition  that  those  who  enforce  martial  law  over  our  own 
people  and  territory  are  legally  irresponsible  for  what  they  do. 
The  Duke  of  Wellington  was  speaking  of  military  govern- 
ment— the  power  of  a  conqueror  on  foreign  soil — as  illustrated 
by  his  own  experience  in  France  ;  while,  as  we  have  seen,  Lord 
Hale  referred  to  rules  adopted  by  the  sovereign  for  the  govern- 
ment of  his  irregular  army  when  it  was  called  into  active  serv- 
ice. Neither  one,  therefore,  had  in  mind  martial  law  considered 
as  a  domestic  fact.  And  if  Blackstone  meant  that  for  those  who 
carry  martial  law  into  effect,  there  is  either  no  amenability,  or 
none  except  to  military  superiors  for  oppressive  use  of  power 
over  the  civil  community,  not  only  can  martial  law  have  no 
place  in  the  judicial  system  of  England,  but  it  never  would  be 
tolerated  in  any  country  of  laws  or  freedom,  nor  anywhere  ex- 
cept under  a  despotism.  With  such  a  scope  it  can  not  exist  in 
the  United  States  consistently  with  the  Constitution,  which,  for 
the  time  being,  it  would  subvert.  Neither  the  President  nor 
Congress  could  constitutionally  authorize  the  exercise  of  such 
a  power,  nor  can  it  exist  by  the  general  principles  of  the  law. 

Yet  martial  law  in  Ireland  has  time  and  again  been  estab- 
lished by  act  of  Parliament  ; 2  while  the  Supreme  Federal  Tribu- 
nal of  the  United  States  has  decided  that,  under  certain  dis- 
turbed conditions  of  the  civil  power,  martial  law  is  permissible 
not  only  in  the  States  of  the  Union  but  under  the  general  gov- 
ment.s  Nowhere,  however,  will  be  found  either  legislative  or 
judicial  sanction  of  the  doctrine  that  martial  law  is  the  turning 
loose  on  the  community  a  horde  of  irresponsible  officials  wield- 
ing a  limitless,  because  an  undefined,  power. 

The  great  problem  is  to  reconcile  the  necessities  of  govern- 
ment with  security  to  personal  rights.  And  as  before  remarked, 
this,  it  is  conceived,  is  most  nearly  attained  by  upholding  to 
the  utmost  those  upon  whom,  under  trying  circumstances,  is 

1.  Bui-rill's  Law  Dictionary.  2.   29  Geo.  3,  chap.   11  (1799).  Irisl1 

Parliament ;  43  Geo.  3,  chap.  117  (1803)  ;  3  and  4  Will.,  4,  chap.  4  (1833). 
3.  7  Howard.,  1  ;  4  Wallace,  2. 


306  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

devolved  the  duty  of  putting  in  execution  this  great  law  of  ne- 
cessity, while  at  the  same  time  holding  them  to  a  strict  reckon- 
ing for  abuse  of  authority  thus  temporarily  placed  in  their  hands. 
The  safeguards  against  martial  law  are  not  found  in  the  de- 
nial of  its  protection,  but  in  the  amenability  of  the  President  to 
impeachment ;  of  military  officers  to  the  civil  and  criminal  laws 
and  to  military  law  ;  in  the  frequent  change  of  public  officers, 
the  dependence  of  the  army  upon  the  pleasure  of  Congress,  and 
the  good  sense  of  the  troops.1 

i.  Whiting,  War  Powers,  ioed.,  163,  170. 


MARTIAL   LAW    UNDER   ENGLISH  JURISPRUDENCE.  307 


CHAPTER  II. 

MARTIAL   LAW   UNDER    ENGLISH  JURISPRUDENCE. 

Theories  regarding  martial  law,  its  nature,  the  scope  of  au- 
thority exercisable  thereunder,  and  the  responsibility  of  those 
enforcing  it  ;  what  state  of  facts  bring  into  existence  the  neces- 
sity which  justifies  resort  to  this  unusual  power,  as  well  as  the 
extent  of  territory  over  which  it  legally  may  be  enforced,  will 
depend  in  great  degree  upon  the  experience  of  that  govern- 
ment whose  officers  are  called  upon  to  carry  it  into  effect,  and 
whose  courts  may  pass  upon  the  legality  of  their  acts.  These 
theories  will  be  reflected  in  the  writings  of  its  historians  and 
commentaries  on  its  laws,  the  practices  of  its  generals,  the  de- 
cisions of  its  courts.  What  may  be  true  regarding  one  gov- 
ernment and  under  one  combination  of  circumstances  may  not, 
and,  except  to  a  limited  extent  probably  will  not,  be  true  un- 
der another  government  and  different  surroundings.  It  is  neces- 
sary to  remember  this,  that  too  much  weight  be  not  attached 
to  authorities  who  may  have  arrived  at  conclusions  drawn 
from  facts  which  are  not  of  general  applicability. 

In  the  United  States  it  is  natural  to  turn  to  English  precedents. 
Not  only  is  the  foundation  of  their  judicial  systems  the  same, 
but  likewise  the  great  bulwarks  of  society  found  in  the  common 
law,  whereby  security  is  given  to  life,  liberty,  and  property.  In 
martial-law  experiences,  however,  the  fortunes  of  the  two  gov- 
ernments in  many  respects  have  been  dissimilar,  a  fact  which 
has  given  rise  to  diverse  views  011  the  subject.  In  England 
the  question  has  been  one  of  dealing  with  rebellion,  not  ex- 
cept to  a  very  limited  extent  in  the  Island  of  Great  Britain  it- 
self, but  in  Ireland  and  in  distant  colonies.  Foreign  invasion 
or  rebellion  so  extensive  as  to  secure  to  the  rebels  belligerent 
rights  has,  happily,  since  the  days  of  Cromwell,  never  con- 
fronted the  British  government.  In  the  United  States,  on  the 
other  hand,  martial  law  has  been  resorted  to  under  all  the  cir- 
cum,stances  mentioned.     As  the  experience  of  the  latter  gov- 


308  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

ernment  has  been  more  varied  and  extensive,  so  the  views  re- 
garding martial  law  entertained  by  its  authorities  may  be  ex- 
pected to  be  as  they  are  more  comprehensive.  They  have  ex- 
amined the  subject  if  not  more  carefully,  still  with  the  aid  of 
light  drawn  from  a  wider  experience  and  the  advantage  of  hav- 
ing many  more  points  of  observation.  It  will  not,  therefore, 
be  surprising  if  the  conclusions  at  which  they  have  arrived  are 
not  in  all  respects  similar  to  those  drawn  by  others  differently 
situated  ;  but  from  the  important  fact  that  their  experience  has 
been  more  varied  as  well  as  more  extensive,  we  may  with  some 
degree  of  confidence  rely  upon  the  correctness  of  those  conclu- 
sions. 

And  first,  as  to  English  experiences.  In  1803  parts  of  Ireland 
were  in  a  state  of  rebellion.  The  civil  authorities  could  not, 
acting  either  alone  or  aided  by  a  subordinate  military,  enforce 
the  laws  of  the  laud.  Resort  was  had,  therefore,  to  more  effi- 
cacious measures.  By  act  of  Parliament 1  passed  to  meet  the 
emergency  it  was  enacted  that  it  should  be  lawful  for  the  lord 
lieutenant  or  other  chief  governor  of  Ireland,  from  time  to  time 
during  the  continuance  of  the  rebellion,  and  whether  the  ordi- 
nary courts  of  justice  should  or  should  not  be  open,  to  issue  his 
orders  to  all  officers  commanding  the  forces  to  take  the  most 
vigorous  and  effectual  measures  for  suppressing  the  rebellion 
which  should  appear  to  be  necessary  for  the  public  safety  and 
the  persons  and  properties  of  loyal  subjects  ;  to  punish  all  per- 
sons acting,  aiding,  or  in  any  manner  assisting  the  rebellion, 
according  to  martial  law,  either  by  death  or  otherwise,  as  to 
them  seemed  expedient  for  the  punishment  and  suppression  of 
all  rebels  in  their  districts,  and  to  arrest  and  detain  in  custody 
all  persons  engaged  in  such  rebellion  or  suspected  thereof,  and 
to  cause  all  persons  so  arrested  to  be  brought  to  trial  in  a  sum- 
mary way,  by  court-martial,  for  all  offences  committed  in  fur- 
therance of  the  rebellion,  whether  such  persons  were  taken  in 
open  arms  against  his  majesty,  or  otherwise  concerned  in  the 
rebellion,  or  in  aiding,  or  in  any  manner  assisting  the  same, 
and  to  execute  the  sentences  of  all  such  courts-martial  whether 
by  death  or  otherwise.  Finally,  and  as  if  in  anticipation  that 
this  parliamentary  declaration  of  martial  law  might  possibly  be 

1.  43  Geo.  III.,  cb.  117. 


.MARTIAL    LAW    UNDER    ENGLISH   JURISPRUDENCE.  309 

construed  in  some  way  as  a  precedent  to  detract  from  the  com- 
mon-law power  of  the  sovereign,  it  was  further  enacted  that 
nothing  in  the  act  should  be  construed  to  take  away,  abridge, 
or  diminish  the  acknowledged  prerogative  of  the  crown  for  the 
public  safety,  to  resort  to  the  exercise  of  martial  law  against 
open  enemies  and  traitors.  Language  could  not  more  clearly 
and  forcibly  set  forth  the  full  scope  of  martial-law  power  in 
time  of  insurrection  or  rebellion. 

Two  features  of  this  law  are  worthy  of  particular  attention  : 
First,  the  careful  reservation  of  the  right  of  the  crown  by  pre- 
rogative to  resort  to  martial  law,  thus  refuting  the  claim  some- 
times made  that  Parliament  alone  has  authority  to  put  into 
operation  this  power,  and  establishing  beyond  question  that  the 
crown  legally  could  resort  to  martial  law  in  the  contingencies 
mentioned,  where  the  expression  "open  enemies  or  traitors" 
would  seem,  as  in  reason  it  should,  to  provide  against  invasion 
as  well  as  rebellion  ;  second,  the  provision  that  the  summary 
course  of  martial  law  should  have  full  effect  equally  whether  the 
ordinary  courts  of  justice  were  or  were  not  open  ;  and  the  reason 
for  this  was  as  interesting  as  the  provision  itself  was  important, 
namely,  that  the  course  of  the  common  law  would  be  taken  ad- 
vantage of  by  guilty  parties  as  a  means  of  escape  from  the  pun- 
ishment due  to  their  crimes.  This  is  the  more  important  from 
the  fact  that  one  of  the  most  familiar  rules  for  the  determination 
of  the  necessity  which  alone  justifies  martial  law  is  whether  or 
not  courts  of  justice  in  the  district  affected  can  sit  and  perform 
their  functions.  But  the  act  cited,  while  recognizing  the  fact 
that  courts  of  justice  might  be  open  for  the  administration  of 
justice,  provided  specifically  that  whether  they  were  or  were  not 
made  no  difference  ;  martial  law  was  to  be  strictly  enforced, 
and  the  ordinary  courts,  though  they  might  sit  undisturbed, 
were  not  to  be  permitted  to  be  made  a  cloak  to  shield  the  guilty 
from  the  legal  consequences  of  their  acts. 

It  may  be  assumed  that  in  a  country  of  laws  and  which  de- 
serves to  be  called  free,  nothing  in  governmental  affairs  rises 
superior  in  dignity  and  authority  to  a  constitutional  act  of  the 
national  legislature.  This  is  pre-eminently  so  in  the  United 
Kingdom,  where  Parliament — king,  lords,  and  commons  act- 
ing together — is  absolute,  and  may  change  even  the  constitu- 
tion at  will.     Yet  we  find  here  two  principles  enunciated  by 


3IO  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

that  supreme  power — that  the  crown  by  virtue  of  prerogative 
may  in  certain  cases  legally  enforce  martial  law  ;  and  the  fact 
that  courts  of  justice  may  be  sitting  is  not  the  infallible  cri- 
terion by  which  the  necessity  which  justifies  martial  law  is  to 
be  tested — principles  which  singularly  enough  receive  but  the 
reluctant  assent  of  many  writers  and  even  judges  of  that 
country. 

In  this  is  discernable  the  difference  between  the  conduct  of  a 
department  or  governmental  agency  whose  duty  it  is  to  meet  a 
great  public  emergency,  and  which  proceeds  to  the  performance 
of  that  duty  in  the  most  direct  and  effective  manner,  and  the 
speculations  of  those,  replete  with  wisdom  after  the  fact,  who 
come  upon  the  stage  when  all  danger  is  passed  and  dilate  upon 
the  various  phases  of  what  may  have  been  a  governmental 
crisis,  weaving  finest  theories  regarding  what  can  and  what 
can  not  constitutionally  be  done  under  such  circumstances. 
With  entire  candor  it  may  be  said,  however,  that  the  former  is 
entitled  to  the  more  respectful  consideration.  The  governmental 
department,  whatever  it  be,  acts  under  a  responsibility  with 
which  those  who  criticise  its  measures  have  not  been  honored. 
The  former  has  to  do  ;  the  latter,  as  a  rule,  but  to  enjoy  the 
pleasures  of  contemplation  while  indulging  their  fancies  regard- 
ing what  ought  to  have  been  done. 

To  the  same  effect  was  British  colonial  experience.  In  a 
case  growing  out  of  the  Jamaica  rebellion  of  1865,  in  which  it 
was  alleged  that  under  color  of  martial  law  murder  had  been 
committed,  the  colonial  judge,  who  had  been  a  witness  to  the 
terrors  of  the  servile  insurrection,  truthfully  observed  :  "  It  is 
manifest  that  every  government  must,  in  the  interest  of  those 
under  its  care,  possess  the  power  of  resorting  to  force  in  the 
last  extremity.  The  want  of  such  a  power  would  place  the 
very  existence  of  the  State  at  the  mercy  of  organized  con- 
spiracy. The  public  safety,  therefore,  which  is  the  ultimate 
cause,  confides  to  the  supreme  authority  in  every  country  the 
power  to  declare  when  the  emergency  has  arisen.  But  martial 
law,  while  it  dispenses  with  the  forms  and  delays  which  apper- 
tain to  ordinary  criminal  jurisdiction,  does  not,  therefore,  au- 
thorize or  sanction  every  deed  assumed  to  be  done  in  its  name. 
It  stops  far  short  of  that.  For  if  it  did  not,  lawless  men,  un- 
der color  and  pretence  of  authority,  might  commit  acts  abhor- 


MARTIAL    tAW    UNDER    INGUSH   JURISPRUDENCE.  311 

rent  to  humanity,  and  might  gratify  malice  and  revenge, 
hatred  and  ill-will.  No  greater  error  exists  than  to  suppose 
that  the  subjecting  a  district  to  military  power  authorizes  ex- 
cess on  the  part  of  those  who  exercise  that  power.  Deeply, 
therefore,  is  it  in  the  interest  of  the  public  welfare  that  it 
should  be  understood  what  martial  law  sanctions,  and  what  it 
does  not.  It  allows,  in  one  word,  everything  that  is  necessary 
towards  putting  down  resistance  to  lawful  authority.  It  re- 
quires that  the  acts  of  its  members  should  be  honest  and  bona 
fide.  And  it  further  fastens  as  a  condition  upon  its  agents  that 
their  acts  should  be  deemed  to  be  necessary  in  the  judgment  of 
moderate  and  reasonable  men.  Reason  and  common  sense 
must  approve  the  particular  act.  It  is  not  sufficient  that  the 
party  should  unaffectedly  believe  such  and  such  an  act  to 
be  called  for ;  the  belief  must  be  reasonably  entertained,  and 
such  as  a  person  of  ordinary  understanding  would  not  repudi- 
ate. If  these  conditions  are  not  fulfilled  the  act  becomes  unlaw- 
ful with  all  the  consequences  attaching  to  illegality.  It  then 
takes  rank  with  those  acts  to  which  the  privilege  and  protec- 
tion of  martial  law  are  not  extended.  The  vindictive  passions 
are  prohibited  as  absolutely  during  military  rule  as  in  the  most 
orderly  and  tranquil  condition  of  human  affairs.  Excess  and 
wantonness,  cruelty  and  unscrupulous  contempt  of  human  life, 
meet  with  no  sanction  from  martial  law  any  more  than  from 
ordinary  law.  No  amount  of  personal  provocation  will  justify 
or  excuse  vindictive  retaliation.  Were  it  otherwise,  an  institu- 
tion which,  though  stern,  is  beneficial,  would  degenerate  into 
an  instrument  of  mere  private  malice  and  revenge."  l 

These  views,  delivered  from  the  bench  and  in  the  very  presence 
as  it  were  of  insurrection,  well  present  the  two  aspects  under 
which  martial  law  appears  :  first,  a  necessity  arising  from  par- 
ticular circumstances  and  justifying  what  in  good  faith,  honestly 
and  with  reasonable  discretion,  may  be  done  under  it  to  protect 
and  defend  life  and  property  and  preserve  society ;  second,  a  rule 
of  law  holding  to  strict  accountability  those  who  seek  under  cover 
of  its  exercise  to  gratify  personal  and  unworthy  ambition,  or  to 
tyrannize  over  those  whom  misfortune  for  the  time  being  has 
placed  in  their  power. 

i.  Finlasou,  Repression  Riot  aud  Rebellion,  pp.  i68-'9. 


312  MILITARY    GOVERNMENT   AND    MARTIAE    EAW. 

This  rebellion  and  the  measures  taken  to  suppress  it  gave  rise 
to  heated  discussions  in  England  on  the  subject  of  martial  law ; 
the  officers  who  had  declared  and  enforced  it  were  subjected — 
but  without  ultimate  serious  legal  consequences— to  the  annoy- 
ance of  prosecutions  in  the  mother  country,  which  assumed 
very  much  the  appearance  of  persecutions.  The  home  govern- 
ment, while  not  justifying  all  that  had  been  done,  sustained  the 
energetic  measures  of  its  officers,  and  grand  juries  could  not  be 
brought  even  under  the  seemingly  biased  instructions  of  judges 
to  bring  in  true  bills  against  them.  One  of  the  most  notable 
and  valuable  incidents  of  this  public  agitation  was  the  deliver- 
ing an  opinion — non-judicial — on  the  nature  and  scope  of  martial 
law,  by  Mr.  Edward  James  and  Sir  James  Fitz  James  Stephen, 
called  forth  at  the  instance  of  the  government  authorities. 
This  opinion,  as  we  are  informed  in  the  "  History  of  the  Crimi- 
nal Law  of  England,"  '  was  drawn  by  Mr.  Stephen,  and  it  is 
worthy  of  particular  notice  both  on  account  of  the  learning  and 
probity  of  its  author  and  its  historical  and  legal  value. 

It  was  observed  that  ' '  the  whole  doctrine  of  martial  law  was 
discussed  at  great  length  before  a  committee  of  the  House  of 
Commons  which  sat  in  the  year  1849  to  inquire  into  certain 
transactions  that  had  taken  place  in  Ceylon.  Sir  David  Dundas, 
the  judge-advocate  general,  explained  his  view  at  length,  and 
was  closely  examined  upon  it  by  Sir  Robert  Peel,  Mr.  Glad- 
stone, and  others.  The  following  answers  amongst  others  throw 
much  light  on  the  subject :  '5459.  If  a  governor  fairly  and  fully 
believes  that  the  civil  and  military  power  which  is  with  him, 
and  such  assistance  as  he  might  derive  from  the  sound-hearted 
part  of  the  queen's  subjects,  is  not  enough  to  save  the  life  of 
the  community  and  to  suppress  disorder,  it  is  his  duty  to  sup- 
press it  by  martial  law  or  any  other  means.  5476.  (Sir  Robert 
Peel)  A  wise  and  courageous  governor,  responsible  for  a  colony, 
would  take  the  law  into  his  own  hands  and  make  a  law  for  the 
occasion  rather  than  submit  to  anarchy?  A.  I  think  that  a 
wise  and  courageous  governor  would  if  necessary  make  a  law 
to  his  own  hands,  but  he  would  much  rather  take  a  law  which 
is  already  made  ;  and  I  believe  that  the  law  of  England  is  that 
a  governor,  like  the  crown,  has  vested  in  him  the  right,  where 

1.  Vol.  1,  p.  207. 


MARTIAL    LAW   UNDER    ENGLISH   JURISPRUDENCE.  313 

the  necessity  arises,  of  judging  of  it  and  being  responsible  for 
his  work  afterwards,  so  to  deal  with  the  laws  as  to  supersede 
them  all  and  to  proclaim  martial  law  for  the  safety  of  the  colony. 
5477.  (In  answer  to  Mr.  Gladstone)  I  say  he  is  responsible  just 
as  I  am  responsible  for  shooting  a  man  on  the  king's  highway 
who  comes  to  rob  me.  If  I  mistake  my  man,  and  have  not  in 
the  opinion  of  the  judge  and  jury  who  try  me  an  answer  to  give, 
I  am  responsible.  5506.  My  notion  is  that  martial  law  is  a  rule 
of  necessity,  and  that  when  it  is  exercised  by  men  who  are  em- 
powered to  do  so  and  they  act  honestly,  vigorously,  and  with 
as  much  humanity  as  the  case  will  permit  in  discharge  of  their 
duty,  they  have  done  that  which  every  good  citizen  is  bound  to 
do.  Martial  law  has,  accordingly,  been  proclaimed  in  several 
colonies,  viz.,  at  the  Cape  of  Good  Hope,  in  Ceylon,  Jamaica, 
and  in  Demerara.' 

' '  The  views  thus  expressed  appear  to  be  substantially  correct. 
According  to  them  the  words  '  martial  law  '  as  used  in  the  expres- 
sion '  proclaiming  martial  law  '  might  be  defined  as  the  assump- 
tion for  a  certain  time  by  the  officers  of  the  crown  of  absolute 
power  exercised  by  military  force  for  the  purpose  of  suppressing 
an  insurrection  or  resisting  an  invasion.  The  proclamation  of 
martial  law  in  this  sense  would  only  be  a  notice  to  all  whom  it 
might  concern  that  such  a  course  was  about  to  be  taken. 

"  It  is  scarcely  possible  to  distinguish  martial  law,  as  thus  de- 
scribed and  explained,  from  the  common-law  duty  which  is  in- 
cumbent upon  every  man,  and  especially  upon  every  magistrate, 
to  use  any  degree  of  physical  force  that  may  be  required  for 
the  suppression  of  a  violent  insurrection,  and  which  is  incum- 
bent as  well  on  soldiers  as  on  civilians,  the  soldiers  retaining 
during  such  service  their  special  military  obligations.  Thus, 
for  instance,  it  is  apprehended  that  if  martial  law  had  been 
proclaimed  in  London  in  1780,  such  a  proclamation  would  have 
made  no  difference  whatever  in  the  duties  of  the  troops  or  the 
liabilities  of  the  rioters.  Without  any  proclamation  the  troops 
were  entitled  and  bound  to  destroy  life  and  property  to  any  ex- 
tent which  might  be  necessary  to  restore  order.  It  is  difficult 
to  see  what  further  power  they  would  have  had,  except  that  of 
punishing  the  offenders  afterwards,  and  this  is  expressly  for- 
bidden by  the  Petition  of  Right." 


3  H  MILITARY   GOV^RNMKNT   AND    MARTIAL   LAW. 

Sir  James  Fitz  James  Stephen  summed  up  his  views  of  mar- 
tial law  in  general  in  the  following  propositions  :  First,  martial 
law  is  the  assumption,  by  officers  of  the  crown,  of  absolute 
power  exercised  by  military  force  for  the  suppression  of  an  in- 
surrection and  the  restoration  of  order  and  lawful  authority. 
The  officers  of  the  crown  are  justified  in  any  exertion  of  physi- 
cal force  extending  to  the  destruction  of  life  and  property  to 
any  extent  and  in  any  manner  that  may  be  required  for  the 
purpose.  They  are  not  justified  in  the  use  of  cruel  and  un- 
usual means,  but  are  liable  civilly  and  criminally  for  such  ex- 
cess. They  are  not  justified  in  inflicting  punishment  after  re- 
sistance is  suppressed  and  after  the  ordinary  courts  of  justice 
are  reopened.  The  principle  by  which  their  responsibility  is 
measured  is  well  expressed  in  the  case  of  Wright  v.  Fitz- 
Gerald.1  Wright  was  a  French  school-teacher  who,  after  the 
suppression  of  the  Irish  rebellion  of  1798,  brought  an  action 
against  Mr.  Fitz-Gerald,  the  sheriff  of  Tipperary,  for  having 
cruelly  flogged  him  without  due  inquiry.  Martial  law  was  in 
full  force  at  that  time  and  an  act  of  indemnity  had  afterwards 
been  passed  to  excuse  all  breaches  of  the  law  committed  in  the 
suppression  of  the  rebellion.  In  summing  up,  Mr.  Justice 
Chamberlain,  with  whom  I,ord  Yelverton  agreed,  remarked 
that  the  jury  were  not  to  imagine  that  the  legislature,  by  en- 
abling magistrates  to  justify  under  the  indemnity  bill,  had  re- 
leased them  from  the  feelings  of  humanity  or  permitted  them 
wantonly  to  exercise  power,  even  though  it  were  to  put  down 
rebellion.  No  ;  it  expected  that  in  all  cases  there  should  be  a 
grave  and  serious  examination  into  the  conduct  of  the  supposed 
criminal,  and  every  act  should  show  an  intent  to  discover 
guilt,  not  to  inflict  torture.  By  examination  or  trial  he  did  not 
mean  that  sort  of  examination  and  trial  which  they  were  then 
engaged  in,  but  such  the  best  the  nature  of  the  case  and  exist- 
ing circumstances  would  allow  of.  That  this  must  have  been 
the  intention  of  the  legislature  was  manifest  from  the  expres- 
sion "  magistrates  and  all  other  persons,"  which  proved  that  as 
every  man,  whether  magistrate  or  not,  was  authorized  to  sup- 
press rebellion,  and  was  to  be  justified  by  the  indemnity  bill  for 
his  acts,  it  is  required  that  he  should  not  exceed  the  necessity 

j.  27  State  Trials,  759  [ante,  p.  16 ). 


MARTIAL  LAW  UNDER    ENGLISH  JURISPRUDENCE.  315 

which  gave  him  the  power,  and  that  he  should  show  in  his  jus- 
tification that  he  had  used  every  possible  means  to  ascertain 
the  guilt  which  he  had  punished  ;  and,  above  all,  no  deviation 
from  the  common  principles  of  humanity  should  appear  in  his 
conduct. 

Second.  The  courts-martial,  as  they  are  called,  by  which  mar- 
tial law  in  this  sense  of  the  word  is  administered,  are  not,  prop- 
erly speaking,  courts-martial  at  all.  They  are  merely  commit- 
tees formed  for  the  purpose  of  carrying  into  execution  the  dis- 
cretionary powers  assumed  by  the  government.  On  the  one 
hand  they  are  not  obliged  to  proceed  in  the  manner  pointed 
out  by  the  mutiny  act  and  the  articles  of  war.  On  the  other,  if 
they  do  so  proceed  they  are  not  protected  by  them  as  the  mem- 
bers of  a  court-martial  might  be,  except  so  far  as  such  proceed- 
ings are  evidence  of  good  faith.  They  are  justified  in  doing 
with  any  forms  and  in  any  manner  whatever  is  necessary  to 
suppress  insurrection  and  to  restore  peace  and  the  authority  of 
the  law.  They  are  personally  liable  for  any  acts  which  they 
may  commit  in  excess  of  that  power,  even  if  they  act  in  strict 
accordance  with  the  mutiny  act  and  the  articles  of  war. 

This  opinion  is  deemed  of  sufficient  importance  to  be  quoted 
at  length.  It  will  be  observed,  however,  that  the  learned 
counsel  who  delivered  it  had  only  under  consideration  the  case 
of  rebellion,  riot,  or  insurrection,  an  uprising  so  small  in  its 
proportions  as  not  to  warrant  dignifying  the  resulting  contest 
for  its  suppression  by  the  name  of  war  ;  nor  such  as  would 
secure  to  the  rebels  belligerent  rights  ;  nor  does  the  situation  of 
a  community  disordered  by  invasion  receive  any  except  a  pass- 
ing allusion,  with  no  examination  as  to  what  the  necessities 
growing  out  of  such  a  state  of  affairs  legally  would  justify. 
Attention  at  the  time  it  was  delivered  was  being  earnestly 
directed  to  the  incidents  attending  the  recent  enforcement  of 
martial  law  in  the  distant  island  of  Jamaica  ;  and  the  burning 
question  of  the  hour  was  whether  after  the  suppression  of  active 
resistance  alleged  criminals  legally  could  be  proceeded  against 
before  military  tribunals  erected  under  the  authority  of  martial 
law,  or  whether  they  should  be  turned  over  for  trial  to  the  civil 
tribunals.  Upon  this  point  the  opinion  is  clear  that  the  latter 
is  the  proper  course  under  the  English  law. 


316  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

The  reference  made  to  the  disturbances  of  1780 — Lord  George 
Gordon  riots — shows  that  the  opinion  did  not  extend  in  its 
scope  beyond  the  case  of  a  formidable  uprising  such  as  those 
riots  were,  where  the  military  acted  in  aid  of  and  in  subordina- 
tion to  the  civil  authorities  ;  but  in  point  of  fact  acted  thus  very 
inefficiently  compared  to  what  they  might  have  done,  due  to 
the  vacillation  and  want  of  firmness  on  the  part  of  the  civil 
magistrates  who  first  hesitated  to  call  upon,  and  when  called 
out  to  direct  the  military  where  and  how  to  act.1  As  to  the 
powers  and  responsibilities  of  the  military  when  so  acting,  the 
views  of  the  opinion  are  in  consonance  with  those  heretofore 
expressed  in  this  treatise  as  attaching  to  officers  under  martial 
law. 

A  case  for  the  legal  declaration  of  martial  law,  or  its  enforce- 
ment perhaps  without  declaration,  like  that  which  arose  at  New 
Orleans  in  1814,  at  Atlanta  and  other  places  in  the  Confederacy, 
or  in  Missouri,  Kansas,  and  elsewhere  within  the  Federal  lines 
during  the  civil  war,  receive  no  consideration  from  the  writer  of 
the  opinion  just  cited.  Yet  these  are  experiences  in  our  own 
history  fraught  with  vastly  more  important  consequences  to 
society  and  good  government  than  are  the  incidents  attending 
rebellion  in  a  small  semi-civilized  island  where  the  energetic 
use  of  a  few  soldiers  for  a  brief  period  sufficed  to  stamp  out 
effectually  all  resistance  to  lawful  authority. 

As,  therefore,  the  experiences  of  Great  Britain  and  the  United 
States  as  to  the  occurrences  which  called  forth  martial  law  have 
been  so  dissimilar,  it  is  not  to  be  wondered  at  if  the  views  of 
the  authorities  of  the  two  countries — executive,  legal,  and  judi- 
cial as  to  its  nature,  and  the  powers,  duties,  and  responsibilities 
of  those  who  are  called  upon  to  put  it  into  execution — should,  as 
before  pointed  out,  to  some  extent  be  found  to  differ.  It  would 
be  strange  were  it  not  so.  Yet  careful  examination  will  evince 
that  want  of  concurrence  is  not  so  marked  as  might  have  been 
anticipated  considering  the  unlike  standpoints  occupied  by  those 
whose  duty  it  has  been  to  give  the  subject  closest  attention. 
And  whatever  view  may  be  taken  in  England  of  the  military 
courts  which  may  sit  under  martial  law,  whether  they  be  consid- 
ered mere  committees  or  courts  proper,  their  nature  is  not  an 


1.  Fiulasou,  Repression  of  Riot  arid  Rebellion,  p.  7  et  seg. 


MARTIAL   LAW   UNDER    ENGLISH   JURISPRUDENCE.  317 

open  question  in  the  United  States,  where  military  commissions 
are  as  well  known  and  within  their  proper  sphere  as  well  rec- 
ognized as  courts-martial  themselves.1 

"The  declaration  of  marshal  law,  or,  as  modern  usage  pre- 
fers to  write  it,  of  martial  law,"  says  Simmons,2  "extends  its 
operations  to  persons  not  within  the  provisions  of  the  mutiny 
act,  and  subjects  the  whole  population  of  the  proclaimed  dis- 
trict to  orders  according  to  the  rules  and  discipline  of  war, 
and  renders  all  persons  amenable  to  courts-martial  on  the  or- 
der of  the  military  authority  and  so  long  as  the  civil  judica- 
ture is  not  in  force.  There  is  also  a  modified  exercise  of  martial 
law  where,  by  special  intervention  of  the  authority  exercising 
the  supreme  legislative  power,  courts-martial  have  been  erected 
into  tribunals  for  the  trial  of  persons  not  otherwise  subject  to 
military  law  for  certain  specified  offences,  notwithstanding  that 
the  ordinary  course  of  law  may  have  been  partially  restored  or 
may  never  have  been  altogether  stayed."  He  then  remarks 
that  the  mutiny  act,  by  prohibiting  martial-law  methods  in 
time  of  peace,  indirectly  recognizes  resort  to  this  expedient  as 
legal  in  time  of  war  and  rebellion,  or  such  armed  rising  as  is 
levying  war  against  the  crown  ;  that  no  legal  dogma  can  be 
clearer  than  this,  and  being  each  year  recognized  by  Parlia- 
ment, it  is  entitled  to  all  the  deference  which  may  be  due  to  an 
act  of  the  legislature  so  repeatedly  revised  and  considered  ; 
finally,  that  the  legal  right  of  the  sovereign  to  resort  to  the 
exercise  of  martial  law,  as  here  defined,  has  been  frequently 
reasserted  by  the  legislature  and  is  not  to  be  questioned. 

To  the  same  effect  is  McArthur,  who  calls  attention  to  the 
confusion  of  thought  often  fallen  into  by  able  lawyers  and 
writers  who  constantly  confound  military  law  as  exercised  by 
authority  of  Parliament,  the  mutiny  act,  the  articles  of  war, 
and  army  regulations,  "with  a  different  branch  of  the  royal 
prerogative  denominated  martial  law,  and  which  is  only  re- 
sorted to  upon  an  emergency  of  invasion,  rebellion,  or  insur- 
rection." 3  This  was  in  1813;  and  he  observes  that  martial 
law  is  proclaimed  by  authority  of  Parliament  over  the  kingdom 

1.  State  v.  Stillman,  Sup.  Ct.  Term.,  7  Cold.,  352  ;  1  Wallace,  25i-'4. 

2.  Constitution  and  Practice  of  Courts  Martial,  7U1  edition,  sec.  36. 

3.  Vol.  1,  p.  33- 


318  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

partially  or  wholly  for  the  suppression  and  extinction  of  the  re- 
bellion ;  that  the  authority  under  which  martial  law  is  exer- 
cised, when  it  prevails  in  its  full  extent,  claims  a  jurisdiction 
in  summary  trials  by  courts-martial  not  only  over  all  persons 
in  the  military  service  under  all  circumstances,  but  that  it  also 
extends  to  a  great  variety  of  cases  not  relating  to  military 
matters,  but  affecting  those  occupying  the  district  for  the  time 
being  subjected  to  martial  law. 

Griffiths  observes  that  martial  law  extends  to  all  persons 
within  the  district  affected,  while  military  law  applies  only  to 
these  belonging  to  or  serving  with  the  army  ;  that  necessity 
is  the  only  rule  of  the  former  ;  that  the  punishments  which 
courts-martial  may  inflict  under  its  authority  are  not  limited  as 
under  ordinary  circumstances,  and  that  imperious  necessity 
under  the  actual  surroundings  at  the  time  determine  in  any  case 
what  punishments  are  suitable  for  established  guilt.1  This  ac- 
cords with  the  remarks  of  Stephen  before  quoted,  that  courts 
under  martial  law  are  not  bound  by  nor  could  they  seek  the 
shelter  of  the  mutiny  act. 

In  the  Manual  of  Military  L,aw  issued  with  the  sanction  of 
the  British  War  Office  it  is  stated  that  martial  law  as  distin- 
guished from  military  law  and  the  customs  of  war  is  unknown 
to  English  jurisprudence  ;  that  the  intermediate  state  between 
war  and  peace  called  by  continental  writers  a  "state  of  siege," 
does  not  exist  in  English  law,  which  never  presupposes  the 
possibility  of  civil  war,  and  is  silent  as  to  such  a  condition  of 
things  ;  that  within  the  United  Kingdom  peace  always  exists 
in  contemplation  of  English  law,  and  the  disturbers  of  that 
peace  are  considered  guilty  according  to  the  gravity  of  their 
offences  and  punishable  therefor  with  fine,  imprisonment,  penal 
servitude,  or  death  ;  that  while  what  is  called  martial  law  had 
been  in  former  times  proclaimed  against  disturbers  of  the  public 
peace  in  England,  yet  such  a  proclamation  in  no  degree  sus- 
pended the  ordinary  law  or  substituted  any  other  in  its  stead,  and 
amounted  to  no  more  than  an  authoritative  announcement  of  the 
existence  of  a  state  of  things  in  which  force  would  be  used 
against  wrong-doers  for  the  purpose  of  protecting  the  public 

i.  Notes  on  Military  Law,  London,  1841,  p.  20;  see  also  Frankly n,  Out- 
lines of  Military  Law,  p.  84. 


MARTIAL    LAW    UNDER    ENGLISH   JURISPRUDENCE.  319 

peace  ;  that  the  origin  of  the  misuse  of  the  expression  martial 
law,  as  implying  a  state  of  things  in  which  subjects  in  time  of 
peace  are  rendered  amenable  to  some  other  than  the  ordinary 
law  would  probably  be  found  in  the  illegal  attempts  which  have 
been  mentioned  as  made  in  the  arbitrary  times  of  English  his- 
tory to  apply  military  law  to  the  civil  population,  as  in  those 
days  a  proclamation  of  martial  law  would  have  the  significant 
effect  that  military,  or  as  it  was  then  called,  martial  law,  would 
be  substituted  for  the  ordinary  law  as  respects  the  disturbers  of 
the  public  peace  ;  in  other  words,  that  the  rioters  when  captured 
would  be  tried  and  punished  by  military  and  not  by  civil  tribu- 
nals ;  that  such  a  state  of  things  never  legally  existed  in  England, 
although  a  restricted  power  of  trying  by  military  tribunals  of- 
fenders against  the  public  peace  in  Ireland  has  on  several  oc- 
casions been  created  by  act  of  Parliament,  and  that  by  English 
law  those  persons  only  can  be  tried  by  courts-martial  who  are 
by  the  army  act  declared  to  be  subject  to  military  law.1 

Such  may  be  the  theory  of  the  law.  But  as  to  this  it  imports 
little  whether  martial  law  be  recognized  in  English  jurispru- 
dence or  not,  if  in  fact  it  be  appealed  to  not  infrequently  by 
Parliament,  the  crown,  and  the  governors  of  important  colonies. 
The  theory  that  this  law  has  no  recognition  in  the  judicial 
polity  of  any  country,  when  the  facts  show  that  it  is  invoked 
either  by  direction  or  with  the  approbation  of  the  highest  gov- 
ernmental authorities,  can  only  be  productive  of  evil  conse- 
quences ;  it  confuses  the  mind  by  creating  a  doubt  whether 
such  summary  procedure  as  attends  the  martial  law  actually  in 
force  can  ever  legally  be  resorted  to  ;  and  however  pleasing  the 
idea  to  those  who  erect  for  themselves  in  this  world  a  condition 
of  society  and  government  where  all  is  bliss,  contentment,  and 
all  without  coercion  obey  the  laws,  experience  shows  that  it  is 
impractical.  The  history  of  England  refutes  it.  Whether 
martial  law  be  or  be  not  recognized  by  her  system  of  jurispru- 
dence, its  assistance  has  often  been  utilized  by  those  who  in 
one  capacity  or  other  are  held  responsible  for  the  preservation 
of  law  and  order  in  the  community.  Upon  this  point  a  recent 
English  authority  remarks  :  ' l  The  occasions  on  which  force  may 
be  employed,  and  the  kind  and  degree  of  force  which  it  is  law- 

1.  Page  4  et  seq.  (2d  ed.) 


320  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

fill  to  use  in  order  to  put  down  a  riot,  is  determined  by  nothing 
else  than  the  necessity  of  the  case.  If,  then,  by  martial  law 
he  meant  the  power  of  the  government  or  of  loyal  citizens  to 
maintain  public  order  at  whatever  cost  of  blood  or  property  may 
be  necessary,  martial  law  is  assuredly  a  part  of  the  law 
of  England. ' ' ' 

Since  the  Petition  of  Right  none,  not  even  the  sovereign,  it  is 
apprehended,  has  seriously  entertained  the  thought  that  martial 
law  in  time  of  peace  was  legal  within  the  realm.  To  argue 
that  it  is  not,  is  a  waste  of  words  ;  it  is  denying  what  no  one 
asserts  to  be  true.  What  is  claimed,  however,  and  what  the  ex- 
perience of  that  country  proves  to  be  true,  is  this  :  when  the  or- 
dinary authorities  are  unable  to  secure  to  the  people  the  rights 
of  life,  person,  and  property  which  society  was  organized  to 
protect  and  government  to  maintain  in  consequence  either  of 
insurrection,  rebellion,  or  invasion,  and  it  becomes  necessary  to 
put  forth  every  resource  of  the  State  with  an  energy  and  prompt- 
ness of  which  the  military  power  alone  is  capable,  then,  under 
these  circumstances  the  proper  governmental  agents  are  justi- 
fied in  proceeding  by  another  and  unwritten  law,  sanctioned  by 
custom  and  recognized  by  both  the  executive  and  legislature  as 
that  law  only  which  is  adapted  to  such  emergencies.  It  is  not, 
in  the  proper  sense,  a  time  of  peace,  hence  the  laws  of  peace  are 
not  applicable  ;  but  it  is  either  absolutely  or  in  great  measure 
time  of  war,  and  the  laws  of  war  largely  prevail. 

In  this  view  it  becomes  important  to  know  what  constitutes 
war,  and  in  regard  to  this  the  remarks  of  Lord  Tenterden  are 
worthy  of  particular  notice  :  ' '  The  pomp  and  circumstance  of 
military  array  such  as  usually  attend  regular  warfare  are  by  no 
means  necessary  to  constitute  an  actual  levying  of  war.  Re- 
bellion at  its  first  commencement  is  rarely  found  in  military 
discipline  or  array,  although  a  little  success  may  soon  enable 
its  actors  to  assume  them."  2  To  the  same  effect  Lord  Camp- 
bell, then  attorney-general,  remarked  that  "levying  war 
against  the  crown  is  where  there  is  an  armed  force  seeking  to 
supersede  the  law  and  gain  some  public  object."3  Lord  Chief 
Justice  Tindal  added  that  ' '  there  must  be  an  insurrection  and 

I.  Dicey,  Law  of  the  Constitution  (1889),  p.  268.  2.  37  State 

Trials,  684.  3.  Regina  v.  Frost,  9  Car.  and  Payne's  Repts.,  141. 


MARTIAL    LAW    UNDER    ENGLISH   JURISPRUDENCE.  321 

force  accompanying  it  and  an  object  of  a  public  nature."  It 
matters  not  what  kind  of  force,  if  it  be  offensive  and  destruc- 
tive— the  club  or  the  sword,  the  fire-arm  or  the  fire-brand. 
Numbers  armed  with  rude  weapons  may  overpower  a  smaller 
force  armed  and  disciplined  ;  and  when  that  disproportion  of 
force  is  established,  and  the  ordinary  powers  of  law  which  ap- 
ply only  to  actual  resistance  manifestly  fail,  recourse  must  be 
had  to  measures  of  war.1 

Without  going  back  to  the  more  violent  periods  of  her  early 
history  English  modern  experience  furnishes  evidence  that  the 
ordinary  machinery  of  civil  government  may  be  inadequate 
successfully  to  deal  with  a  mere  passing  social  disorder  arising 
out  of  local  causes.  Recall  scenes  attending  the  seating  of  Mr. 
Wilkes  in  Parliament  in  1768,  the  so-called  Lord  George  Gor- 
don riots  of  1780,  before  mentioned,  and  those  at  Manchester 
in  1830  !  -  On  the  first  occasion  alluded  to  matters  soon  passed 
beyond  the  power  of  the  magistracy  to  control,  and  the  military 
were  called  out  to  aid  the  civil  authorities.  At  last  every  effort 
to  restore  tranquillity  proving  ineffectual,  the  soldiers  received 
the  word  of  command  and  fired.  Five  or  six  persons  were 
killed  and  fifteen  were  wounded.  The  mob  was  dispersed,  but 
inexpressible  rage  prevailed  against  the  soldiers.  The  king, 
however,  sanctioned  their  conduct,  which  put  a  timely  check  to 
the  daring  spirit  shown  by  the  mob,  and  returned  thanks  to 
the  commanding  officer  for  his  prudence  and  resolution.  Cer- 
tainly the  military  had  acted  none  too  soon.  "Nothing,"  says 
the  historian,  Adolphus,  speaking  of  these  scenes,  "could  ex- 
ceed the  frenzy  and  indignation  which  prevailed  in  the  public 
mind  ;  riots  of  the  most  dangerous  nature  were  daily  excited. 
All  was  terror,  confusion,  and  alarm,  and  under  the  mask  of 
patriotism  treason  was  actively  employed  ;  combinations  were 
formed  in  different  parts  of  the  country  ;  the  civil  arm  seemed 
too  weak  to  restrain  the  general  spirit  of  licentiousness  which, 
actuated  by  a  designing  leader  or  stimulated  by  a  real  cause  of 
complaint,  would  have  produced  a  total  devastation  of  the  social 
order.  The  spirit  of  revenge  against  all  who  appeared  to  sup- 
port the  government  in  the  late  proceedings  was  carried  to  the 
greatest  excess." 

1.  Finlasou,  Repression  of  Riot  and  Rebellion,  p.  33. 

2.  Adolphus'  History  of  England,  Reign  of  George  III.,  vol.  1,  pp.  312,  313. 


322  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

After  quiet  was  restored  the  magistrate  who  authorized  the 
military  to  fire,  and  several  of  the  soldiers,  were  indicted  for 
murder,  but  they  were  all  acquitted.  This  prosecution  of 
a  faithful  officer  who  had  done  his  duty  could  not  but  have  a 
baleful  influence  which  twelve  years  afterwards  made  itself 
manifest  in  the  Gordon  riots.  In  the  latter  the  mob  finally  at- 
tacked the  bank,  but  the  soldiers  inflicted  a  severe  chastise- 
ment upon  them.  The  military  came  in  from  the  country,  and 
in  obedience  to  an  order  of  the  king  in  council,  directions  were 
given  to  the  officers  to  fire  upon  the  rioters  without  waiting  the 
sanction  of  the  civil  power.  Tranquillity  was  restored,  but  not. 
before  four  hundred  and  fifty-eight  persons  had  been  killed  or 
wounded.1 

"The  magistracy  of  the  metropolis,"  says  the  historian, 
' '  have  been  reproached  for  supineness  during  the  prevalence  of 
these  dreadful  riots  ;  but  it  was  not  forgotten  that  an  excellent 
magistrate  for  the  county  of  Surry  was  tried  for  his  life  in  con- 
sequence of  the  order  given  by  him  at  the  riots  in  1768,  for  the 
military  to  fire,  after  long  and  patiently  enduring  the  greatest 
provocation  from  the  rioters  and  twice  reading  the  riot  act. 
Such  a  precedent  could  not  but  tend,  in  a  similar  emergency, 
to  enfeeble  the  civil  power."  3  As,  after  the  riots  of  1768,  the 
magistrate  was  prosecuted  for  calling  on  the  military  to  sup- 
press the  disturbance,  so  now,  when  that  very  example  had 
deterred  him  from  acting,  the  lord  mayor  of  London  was  in- 
dicted and  convicted  for  not  calling  them  out. 

In  the  remaining  instance  referred  to,  the  Manchester  riots  of 
1830,  the  civil  officers  seem  again  to  have  been  influenced  by 
the  fate  of  their  predecessor  in  authority,  the  lord  mayor  of 
London.  This  was  but  natural,  and  it  led  them  to  resolve  to 
escape  indictment  for  non-action  at  least.  The  result  was  that 
they  let  loose  the  yeomanry  cavalry  upon  an  indiscriminate 
crowd  of  men,  women,  and  children,  of  whom  several  hundred 
were  either  cut  down  or  trampled  under  the  horses'  feet.  We 
may  infer,  however,  that  the  officials,  civil  and  military,  in  this 
instance  hit  the  "precise  line  "  of  their  duty,  as  Lord  Sidmouth 

1.  Wade's  History  of  England,  p.  516.  2.  Ibid.,  p.  517. 


MARTIAL    LAW   UNDER    ENGLISH   JURISPRUDENCE.  323 

communicated  to  them  the  thanks  of  the  government  for  their 
prompt,  decisive  decree  and  efficient  measures  for  the  preser- 
vation of  the  public  tranquillity.1 

With  such  instances  of  failure  of  civil  government  to  meet 
unusual  ebullitions  of  local  discontent,  it  is  not  surprising  that 
the  theory  which  invests  the  common  law  with  an  energy  equal 
to  every  emergency  has  become  discredited  even  with  English- 
men. In  the  light  of  these  facts  what  becomes  of  the  principle 
that  peace  always  exists  in  contemplation  of  English  law  ? 

Whatever  the  theory  may  be,  the  fact  is  that  martial  law, 
even  if  "  unknown  to  English  jurisprudence,"  is  as  here  shown 
not  unknown  to  English  law  and  experience.  The  various 
acts  of  Parliament  before  cited,  providing  for  its  enforcement, 
and  its  declaration  in  English  colonies  either  under  the  sanction 
of  statutes  or  the  custom  of  war,  furnish  cumulative  evidence  of 
this.  Nor  is  the  great  English  constitutional  historian  in  ac- 
cord with  the  Manual.  "  There  may  indeed  be  times  of  press- 
ing danger,"  remarks  Hallam,2  "  when  the  conservation  of  all 
demands  the  sacrifice  of  the  legal  rights  of  the  few  ;  there  may 
be  circumstances  which  may  not  only  justify  but  compel  the 
temporary  abandonment  of  constitutional  forms.  It  has  been 
usual  for  all  governments  during  an  actual  rebellion  to  proclaim 
martial  law  or  the  suspension  of  civil  jurisdiction.  And  this 
anomaly,  I  must  admit,  is  very  far  from  being  less  indispensable 
at  such  unhappy  seasons  in  countries  where  the  ordinary  mode 
of  trial  is  by  jury  than  where  the  rights  of  decision  reside  in 
the  judge.  The  Executive  Department  in  modern  times  has 
been  invested  with  a  degree  of  coercive  power  to  maintain  obe- 
dience of  which  our  ancestors  in  the  most  arbitrary  reigns  had 
no  practical  experience.  If  we  reflect  upon  the  multitude  of 
statutes  enacted  since  the  days  of  Elizabeth  in  order  to  restrain 
and  suppress  disorder,  and  above  all  on  the  prompt  and  certain 
aid  that  a  disciplined  army  affords  to  our  civil  authorities,  we 
may  be  inclined  to  think  that  it  was  rather  the  weakness  than 
the  vigor  of  her  government  which  led  to  its  inquisitorial 
watchfulness  and  harsh  measures  of  prevention. ' '  To  the  same 
effect  is  Dicey  :   "  The  belief,  indeed,  of  our  statesmen  down  to 

1.  Wade's  Hist.  Eng.,  p.  750. 

2.  Constitutional  History  of  England,  vol.  1,  p.  240  et  seq. 


324  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

a  time  considerably  later  than  the  revolution  of  1689  was  that  a 
standing  army  must  be  fatal  to  English  freedom.  Yet  very 
soon  after  the  revolution  it  became  apparent  that  the  existence 
of  a  body  of  paid  soldiers  was  necessary  to  the  safety  of  the 
nation."  ' 

Referring  to  the  apprehension  that  it  would  be  dangerous  to 
liberty  thus  temporarily  to  elevate  the  military  over  the  civil 
power,  Hallam  continues  : 2  "  Nothing  could  be  more  idle  at 
any  time  since  the  revolution  than  to  suppose  that  the  regular 
army  would  pull  the  speaker  out  of  his  chair,  or  in  any  manner 
be  employed  to  confirm  a  despotic  power  in  the  crown.  Such 
power,  I  think,  could  never  have  been  the  waking  dream  of 
either  king  or  minister.  But  as  the  slightest  inroads  upon 
private  rights  and  liberties  are  to  be  guarded  against  in  any 
nation  that  deserves  to  be  called  free,  we  should  always  keep 
in  mind  not  only  that  the  military  power  is  subordinate  to  the 
civil,  but  as  the  subordination  must  cease  when  the  former  is 
frequently  employed,  that  it  should  never  be  called  upon  in 
aid  of  the  peace  without  sufficient  cause.  Nothing  would  more 
break  down  the  notion  of  the  law's  supremacy  than  the  perpetual 
interference  of  those  who  are  really  governed  by  another  law  ; 
for  the  doctrine  of  some  judges,  that  the  soldier  being  still  a 
citizen  acts  only  in  the  preservation  of  the  public  peace  as  any 
other  citizen  is  bound  to  do,  must  be  felt  as  a  sophism  even  by 
those  who  can  not  find  an  answer  to  it." 

Note. — The  language  of  the  historian  in  the  closing  sentence  above 
quoted,  as  to  the  proposition  that  the  soldier,  being  still  a  citizen,  is  bound 
equally  with  all  other  citizens  to  aid  in  putting  down  insurrections,  was 
called  out  by  a  remark  made  by  an  eminent  English  judge  relative  to  the 
employment  of  the  military  in  suppressing  the  Gordon  riots.  Hallam 
pronounces  it  a  sophism.  And  so  in  fact  it  is,  unless  it  be  understood  in 
a  particular  sense.  The  military,  especially  the  regular  force,  are  gov- 
erned by  a  law  of  their  own  ;  every  member  of  it  takes  an  oath  to  obey 
the  lawful  orders  of  the  superiors  appointed  over  him.  To  these  supe- 
riors his  services  and  obedience  are  first  due.  If,  therefore,  it  should  hap- 
pen that  the  civil  magistrate  calls  the  soldier  in  one  direction,  and  his 
superior  military  officer  in  another,  he  must  obey  the  latter.  The  propo- 
sition is  true,  therefore,  only  in  case  the  soldier,  when  the  magistrate  de- 
mands his  services,  is  not  called  elsewhere  by  his  officers.  So  much  for 
the  soldier  acting  individually  in  response  to  the  demand  of  the  civil  au- 

I.  Study  of  the  Constitution,  p.  268.  2.   Vol.  3,  p.  253. 


MARTIAL   LAW  UNDER   ENGLISH  JURISPRUDENCE.  325 

Viewed  in  the  light  of  such  authority  and  of  the  various 
statutes  instituting  martial  law  in  Ireland  and  the  carrying  it 
into  execution  in  various  British  colonies  under  executive  sanc- 
tion, the  dogma  that  martial  law  is  unknown  to  English  juris- 
prudence will  scarcely  be  deemed  by  the  unprejudiced  to  be  of 
great  importance.     Those  who  have  actually  to  deal  with  the 

thorities.  But  all  know  how  inefficient  and  futile  such  assistance  must  be 
in  times  of  extreme  peril.  Individual  soldiers,  how  many  soever  they 
may  be  on  such  occasions,  are  mixed  with  and  are  lost  to  view  almost  in 
the  multitude.  They  have  not  even  arms  in  their  hands  ;  for  the  soldier, 
when  walking  the  streets  like  a  private  citizen,  does  not  carry  his  arms 
with  him.  His  presence  adds  nothing,  therefore,  to  the  power  of  the 
civil  arm.  It  is  only  when  organized  and  directed  by  their  own  officers  that 
the  military  become  formidable.  Yet  when  so  acting  there  can  be  seen 
little  similarity  in  the  position  of  the  soldiers  and  that  of  citizens  forming 
the  posse  comitatus,  and  directed  by  the  civil  magistrate,  except  that 
both  act  10  sustain  the  law's  supremacy. 

The  important  point  is — and  herein  lies  the  fallacy  of  the  proposition  re- 
ferred to  by  Hallam — that  regular  soldiers,  in  the  capacity  which  alone 
renders  them  effective  against  disturbers  of  the  peace,  namely,  when  act- 
ing as  an  organized  body  under  their  military  commanders,  are  not,  like 
the  ordinary  citizen,  immediately  amenable  to  the  civil  magistrate,  who 
secures  the  services  of  the  former,  if  at  all,  through  the  instrumentality 
of  their  officers.  Regular  soldiers  so  circumstanced  form  no  part  of  the 
posse  comitatus,  as  that  term  applies  to  civilians,  upon  whom  the  civil 
magistrate  lays  the  hand  of  authority  directly.  In  the  United  States 
there  is  a  Federal  statute  forbidding  the  use  of  the  army  as  a  posse 
comitatus,  save  in  a  very  few  instances.1  And  although  this  is  not  true 
in  England,  yet  it  is  true  there  as  here  that  the  regular  forces,  when  act- 
ing with  arms  in  their  hands,  do  so  only  under  the  direct  orders  of  their 
lawfully  appointed  military  superiors.  It  is  therefore  plainly  erroneous 
to  class  them  with  civilians  as  to  obligations  to  obey  the  mandates  of  civil 
magistrates  in  summoning  the  posse  comitatus  to  suppress  insurrection. 
When  the  military  are  called  out  it  is  through  the  medium  of  their  com- 
manding officers,  who  alone  direct  their  movements  ;  while,  as  regards 
civilians,  the  civil  magistrate  not  only  drafts  them  into  service,  but  per- 
sonally commands  them  and  directs  their  energies  to  the  maintenance  of 
the  law.  When  the  civil  magistrate  has  indicated  to  the  officer  com- 
manding where  and  how  the  services  of  the  troops  are  desired  his 
functions  cease  ;  it  is  for  the  officer  to  adopt  whatever  measures  his  ex- 
perience and  knowledge  of  military  affairs  suggest  as  best  suited  to  ac- 
complish the  end  in  view. 

1.  Act,  June  18,  1878,  sec.  10,  ch.  263. 


326  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

affairs  of  this  world  and  are  responsible  for  the  preservation  of 
society  and  supremacy  of  the  laws,  are  as  a  rule  more  inter- 
ested in  knowing  what  exists  in  fact  rather  than  in  theory. 
"  When,"  says  Clode,  "  foreign  invasion  or  civil  war  renders  it 
impossible  for  courts  of  law  to  sit,  or  to  enforce  the  execution 
of  their  judgments,  it  becomes  necessary  to  find  some  rude  sub- 
stitute for  them,  and  to  employ  for  that  purpose  the  military, 
which  is  the  only  remaining  force  in  the  community.  While 
the  laws  are  silenced  by  the  noise  of  arms,  the  rulers  of  the 
armed  force  must  punish  as  equitably  as  they  can  those  crimes 
which  threaten  their  own  safety  and  that  of  society. ' '  !  And  of 
course  insurrection  or  rebellion  will,  if  the  danger  be  sufficiently 
pressing,  equally  with  invasion  or  civil  war,  justify  resort  to 
the  same  measures  of  self-preservation. 

Clode  elsewhere  remarks  that  martial  law  is  not  a  written 
law  ;  that  is  arises  on  a  necessity  to  be  judged  of  by  the  ex- 
ecutive, and  ceases  as  soon  as  possible  with  safety  to  the 
country  or  community  ;  and  that  while  existing  it  covers  all 
persons,  civil  and  military,  but  that  those  who  act  under  it  must, 
if  called  to  account,  justify  their  acts  by  showing  that  the  ne- 
cessity actually  existed.2 

The  English  writer,  Pratt,  considers  somewhat  particularly  the 
subject  of  martial  law,  but  does  not  sufficiently  distinguish  that 
law  from  military  government.  "In  most  foreign  countries," 
he  observes,  "  certain  laws  are  made  applicable  to  a  state  of  war 
or  a  state  of  siege  or  insurrection  when  a  city  or  county  is 
wholly  or  partially  placed  under  military  authority.  In  Eng- 
land no  such  regulation  exists.  When  an  authority  is  forced 
by  necessity  to  suspend  the  ordinary  legal  procedure  it  is  for 
it  to  lay  down  the  limits  of  its  action  and  to  justify  itself  for 
using  exceptional  power."  3 

He  then  lays  down  the  following  principles  as  those  which, 
as  far  as  practicable,  should  be  observed  in  carrying  martial 
law  into  effect :  (i)  It  is  not  retrospective  ;  an  offender  can  not 
be  tried  under  it  for  a  crime  that  was  committed  before  martial 
law  was  proclaimed.  (2)  It  does  not  extend  beyond  the  pro- 
claimed district  outside  of  which  an  offender  can  not  be  either 

1.  M.  F.,  v.  2,  p.  161.  2.  Mil.  and  Martial  Law,  chap.  XI,  sees.  3,  5. 

3.  Military  Law,  p.  214. 


MARTIAL   LAW  UNDER   ENGLISH  JURISPRUDENCE.  327 

arrested  or  tried.  (3)  It  should  not  be  kept  in  force  longer 
than  absolutely  necessary.  (4)  The  process  of  military  law 
should,  as  far  as  practicable,  be  adhered  to. 

The  field  of  vision  of  this  writer,  when  considering  martial 
law  as  a  domestic  fact,  seems  to  be  contracted  to  the  occasion 
of  mere  riot,  insurrection,  or  minor  rebellion.  The  circum- 
stance either  of  invasion  by  a  foreign  foe,  or  of  a  rebellion  like 
that  of  1861-5  in  the  United  States,  or  of  the  17th  century  in 
England,  receives  nothing  more  than  a  passing  allusion. 

The  general  rules  which  this  author  lays  down  as  those  to  be 
followed  in  the  administration  of  martial  law  are  good  in  them- 
selves, and  the  only  question  likely  to  arise  is  as  to  their  ap- 
plicability to  varying  circumstances. 

His  proposition  that  martial  law  can  not  operate  retrospect- 
ively may  be  conceded  as  agreeing  generally  with  the  fact  ; 
yet  it  should  be  received  with  caution.  It  will  scarcely  be 
questioned,  for  instance,  that  those  whose  crimes  have  rendered 
martial  law  in  any  district  a  necessity  will  not  be  permitted  on 
such  a  plea  to  escape  the  legitimate  consequences  of  their  mis- 
deeds. If  the  civil  judicature  can  take  cognizance,  well  and 
good  ;  but  if  not,  are  such  criminals  to  go  unwhipped  of  jus- 
tice on  the  specious  plea  that  the  military  authorities — the 
only  power  that  exists — can  not  act  in  their  cases  ? 

The  second  proposition,  namely,  that  martial  law  "  does  not 
extend  beyond  the  proclaimed  districts,  and  an  offender  can  not 
be  either  arrested  or  tried  beyond  its  limits,"  is  very  general  in 
its  terms,  and  as  a  principle  to  be  remembered  without  being 
strictly  guided  by  it  perhaps  will  do  no  harm  ;  yet  this,  too,  as 
will  hereafter  be  seen,  is  subject,  in  practice,  to  so  many  ex- 
ceptions that  as  a  rule  of  conduct  it  is  of  little  value.1 

The  third  rule  laid  down  by  Pratt,  namely,  that  martial  law 
should  never  be  kept  in  force  longer  than  is  absolutely  neces- 
sary, will  not  be  disputed.  Yet  like  the  two  preceding  rules  it 
is  but  a  general  guide  subject  to  modification  with  varying  facts 
and  circumstances.  What  is  meant  by  absolute  necessity  ?  Who 
is  to  judge  of  its  existence  ?  Is  it  a  condition  of  affairs  in  which 
were  the  military  rule  withdrawn  society  would  disintegrate 
and  government  become  chaos  ?    This  would  render  martial  law 

1.  See  chapter,  "  Martial  Law  Tribunals,"  post. 


328  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

an  absolute  necessity  ;  but  will  nothing  short  of  this  do  it  ?  It 
should  and  will  remain  in  operation  until  this  stage  of  the 
public  danger  has  been  passed. 

But  when  invasion  has  either  been  repelled  or  its  efforts 
warded  off;  the  riot,  insurrection,  or  rebellion  so  far  suppressed 
that  the  municipal  authorities,  acting  through  their  normal  and 
wonted  channels,  secure  to  the  people  the  enjoyment  of  civil 
institutions,  with  safety  to  the  State,  martial  law  must  cease. 
With  safety  to  the  State,  we  have  said,  and  this  is  the  funda- 
mental consideration,  because  even  although  the  danger  at  the 
particular  locality  be  not  urgently  pressing,  still  if  taking  into 
view  the  situation  of  the  whole  country  national  interests  would 
be  jeopardized  by  a  cessation  of  the  martial  rule,  yet  would  the 
military  properly  retain  the  reins  of  power. 

What  has  been  said  answers  the  second  question  growing 
out  of  the  third  proposition,  namely,  who  is  to  judge  whether  or 
not  that  absolute  necessity  exists  which  justifies  the  continuance 
of  martial  law  ?  In  the  first  instance,  the  commander  or  other 
authority  responsible  for  the  maintenance  of  law  and  order,  or 
repelling  the  invasion,  must  determine  it.  In  the  case  of  a  mili- 
tary commander  who  had  assumed  the  authority  to  declare 
martial  law  or  to  put  it  in  operation  under  previous  legislative 
sanction,  his  judgment  would  be  subject  to  review  by  his  mili- 
tary superiors  and  also,  it  is  conceived,  before  a  jury  of  his 
countrymen  should  he  take  advantage  of  his  position  to  act  in 
a  capricious,  oppressive,  and  tyrannical  manner. 

At  first  blush  it  might  seem  that  this  possible  responsibility 
to  a  body  of  twelve  men  who  survey  the  circumstances  of  the 
commander  from  the  safe  and  unexciting  station  of  a  jury-room, 
would  in  any  event  be  a  great  hardship,  the  propriety  or  wisdom 
of  which  it  would  be  difficult  to  vindicate.  This  dilemma  of 
the  officer  has  not  escaped  notice,  and  the  policy  of  the  law  has 
been  animadverted  upon.  Sir  Charles  Napier  in  his  remarks 
on  military  law  complains  of  the  position  of  an  officer  who,  in 
the  corresponding  case  of  suppressing  a  riot  is  still  liable  to 
trial  by  the  ordinary  tribunals  for  what  he  may  do  in  executing 
the  duty  imposed  on  him  by  the  civil  magistrate.1 

i.  Page  38. 


MARTIAL   LAW    UNDER    ENGLISH    JURISPRUDENCE.  329 

It  is  deserving  of  notice,  however,  in  this  connection  that  the 
military  officer  apparently  acts  under  no  greater  responsibility 
than  the  civilian.  In  the  theory  of  the  law  this  is  strictly  true. 
Still,  in  fact,  the  situations  are  very  different,  to  the  disadvan- 
tage of  the  soldier.  The  military  officer  amidst  the  scenes  of 
martial  law  and  the  civil  officer  acting  in  times  of  peace  or  of 
minor  disturbance  even  are  in  very  different  positions,  and  the 
relative  difficulties  of  their  respective  situations  are  greatly 
against  the  former  and  in  favor  of  the  latter.  To  the  military 
commander  is  given  little  or  no  time  for  the  formation  of  a 
judgment  based  on  calm  reflection  and  a  dispassioned  view  of 
the  circumstances  which  beset  him.  Promptness  and  firmness 
are  expected  of  him.  With  him  hesitancy  is  fatal.  In  all  these 
particulars  the  position  of  the  civil  magistrate  is  more  advanta- 
geous. The  machinery  of  municipal  authority  is  well  regulated 
and  its  workings  understood  not  only  by  the  officers  but  the 
people  themselves.  The  civil  officer  surveys  the  field  and  with 
due  deliberation  adopts  measures  to  meet  the  exigency. 

To  apply  the  same  principle  of  responsibility  to  both  classes 
of  officials,  military  and  civil,  when  the  position  of  the  latter  is 
so  much  more  eligible,  might  seem  to  be  unjust.  But  experience 
proves  that  this  is  more  in  appearance  that  in  fact,  for  juries 
act  under  the  instructions  of  judges  who  as  a  rule  are  at  once 
patriotic,  learned,  and  impartial,  and  who  point  out  the  law 
applicable  to  the  case  with  wisdom  and  in  a  spirit  of  fairness. 
The  unusual  circumstances  of  difficulty  which  surround  mili- 
tary men  so  situated  are  generally  given  due  consideration,  and 
the  leaning  of  his  countrymen  will  generally  be  found  towards 
that  commander  who,  even  if  it  be  by  the  exercise  of  question- 
able authority,  has  the  courage  and  fortitude  to  protect  prop- 
erty, preserve  life,  and  restore  order  to  a  distracted  community.1 

The  fourth  proposition  of  this  writer,  namely,  that  the  forms 
of  military  law  should,  as  far  as  practicable,  be  adhered  to,  re- 
quires no  extended  notice.  While  in  the  trial  of  causes  thus 
arising  it  will  be  convenient  to  adhere  to  well-known  court-mar- 
tial rules  of  procedure,  they  are  not  obligatory  except  in  so  far 
as  superior  authority  may  have  rendered  them  so.  The  fairest 
trial  that  the  case  will  admit  of  should  be  had  ;    but  substance 

1.  Hare,  Constitutional  Law,  vol.  2,  p.  920. 


33°  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

under  such  circumstances  takes  precedence  of  form.  Military 
law  proper — the  statutory  law — is  applicable  directly  to  the 
army  and,  in  time  of  war,  to  its  attendants  ;  and  while  the 
commander  might  on  principles  of  analogy,  and  as  far  as  wis- 
dom dictates,  render  the  inhabitants  of  a  district  subjected  to 
martial  rule  amenable  to  military  law,  he  is  under  no  obligation 
to  do  so.  He  neither  derives  his  authority  over  them  from 
that  law,  nor  can  he  appeal  to  it  to  justify  his  conduct  towards 
them  should  this  become  necessary. 

Martial  law  being  lex  ?ion  scripta,  its  rules  of  action  rest  upon 
the  customs  of  civilized  nations.1  These  are  well  established 
and  to  most  military  men  are  familiar.  They  vary  with  cir- 
cumstances and  the  exigencies  of  the  occasion.  To  repel  in- 
vasion, for  instance,  it  might  be  necessary  for  the  commander  to 
gather  into  his  hands  all  the  reins  of  government,  and  for  the 
time  rule  in  a  wholly  arbitrary  and  even  despotic  manner,  di- 
recting every  resource  of  the  district  to  the  one  object  of  frustrat- 
ing the  plans  of  the  enemy.  For  this  purpose  whatever  prop- 
erty is  necessary  may  either  be  taken  or  destroyed,  and  the  per- 
sonal freedom  of  the  people  be  regulated  in  such  manner  as  the 
commander  of  the  defending  forces  may  direct.  At  such  times 
the  maxim  salus  populi  est  suprema  lex  is  peculiarly  applicable. 

On  the  other  hand,  if  a  minor  case  of  rebellion  is  being  dealt 
with,  an  insurrection  or  formidable  riot,  the  military  com- 
mander may  well  avail  himself  of  the  aid  of  the  civil  machinery 
of  government,  including  the  courts,  to  bring  delinquents  to  jus- 
tice and  in  other  ways  vindicate  the  law,  all,  of  course,  under 
his  authority  and  direction  so  long  as  martial  law  is  maintained. 

i.  American  Instructions,  sec  i,  par.  13. 


THEORY,    MARTIAL   LAW   IN   UNITED   STATES.  33  i 


CHAPTER  III. 


THEORY,    MARTIAL   LAW   IN   UNITED   STATES. 

So  much  for  English  authorities  as  to  the  nature  of  martial 
law  and  powers  exercisable  thereunder.  In  the  United  States 
the  disposition  to  refer  to  English  precedents  has  had  its  influ- 
ence in  this  as  in  other  juridical  fields.  Hence  we  find  these 
frequently  quoted  by  American  writers,  lawyers,  and  jurists 
when  treating  this  subject.  Still,  as  before  observed,  the  cir- 
cumstances under  which  martial  law  has  here  been  instituted 
differ  in  so  many  particulars  from  those  attending  a  correspond- 
ing exercise  of  power  in  England  and  her  dependencies,  that 
new  rules  or  material  modifications  of  those  inherited  from  the 
mother  country  are  with  us  necessary. 

In  his  argument  in  the  Milligan  case,1  the  attorney  general 2 
defined  martial  law  as  the  will  of  the  commanding  officer  of  an 
armed  force,  or  of  a  military  geographical  department,  ex- 
pressed in  time  of  war  within  his  military  jurisdiction  as  nec- 
essity demands  or  dictates,  restrained  or  enlarged  by  the  orders 
of  his  military  chief  or  the  supreme  executive  ruler. 

He  laid  down  the  broad  principle  that  the  officer  executing 
martial  law  is  at  the  same  time  supreme  legislator,  supreme 
judge,  supreme  executive  ;  that  as  necessity  makes  his  will  the 
law,  he  onl}r  can  define  and  declare  it,  and  whether  or  not  it  is 
infringed,  and  of  the  extent  of  the  infraction,  he  alone  can 
judge  and  his  sole  order  punishes  or  acquits  the  offender. 

This  definition  and  these  views  seem  to  be  in  a  measure  in- 
consistent. For  if  the  commander  be  supreme  to  the  degree  in- 
dicated in  the  closing  sentences,  how  can  he  be  subjected  to 
those  restrictions  laid  down  as  proper  in  this  definition  of  mar- 
tial law  ?  It  is  believed  that  upon  the  latter  point  the  definition 
conforms  to  the  true  doctrine  ;  that  the  official  carrying  martial 
law  into  execution  acts  subject  to  restrictions  imposed  by  superior 
authority  ;  and  not  only  that,  but  through  the  instrumentalities 

1.  4  Wallace,  2.         2.  Speed. 


332  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

of  the  civil  courts  he  may  be  made,  as  before  pointed  out,  re- 
sponsible over  to  those  whose  rights  of  person  and  property  he 
may  have  violated.  When  it  is  said  that  he  is  supreme  it  can 
only  be  meant  that  on  the  spot  there  is  no  power  capable  of 
arresting  the  execution  of  his  mandates.  In  this  sense  and  to 
this  degree  he  is  supreme.  So,  likewise,  are  very  many  besides 
military  officers,  who  in  isolated  positions  have  authority  placed 
in  their  hands  to  be  exercised  at  discretion  ;  they  for  the  time 
being  are  supreme  within  their  spheres  of  action,  but  the  chain 
of  their  ultimate  responsibility  is  unbroken,  binding  them  to  a 
faithful  discharge  of  their  public  trust  under  penalties  provided 
by  the  law  itself. 

The  opposing  counsel *  in  the  case  referred  to,  while  arguing 
upon  the  subject  under  discussion  from  different  premises,  ar- 
rived at  essentially  the  same  conclusions  regarding  the  author- 
ity of  military  commanders  under  such  circumstances  :  "I  say 
what  is  called  martial  law,"  he  observed,  "  for  strictly  there  is 
no  such  thing  as  martial  law,  it  is  martial  rule  ;  that  is  to  say, 
the  will  of  the  commanding  officer,  nothing  more,  nothing  less. 
What  is  ordinarily  called  martial  law  is  no  law  at  all.  Wel- 
lington, in  one  of  his  despatches  from  Portugal,  in  1810,  and  in 
his  speech  on  the  Ceylon  affairs,  so  describes  it.  Det  us  call 
the  thing  by  the  right  name  ;  it  is  not  martial  law  but  martial 
rule.  And  when  we  speak  of  it,  let  us  speak  of  it  as  abolish- 
ing all  law  and  substituting  the  will  of  the  military  com- 
mander, and  we  shall  give  a  true  idea  of  the  thing  and  be  able 
to  reason  about  it  with  a  clear  sense  of  what  we  are  doing." 
Thus  do  extremes  meet.  Each  side  to  the  contention  errone- 
ously maintained  the  absolute  nature  of  the  power  wielded  un- 
der martial  law  ;  the  one  to  lend  a  sanction  to  military  com- 
missions far  from  the  field  of  operations,  the  other  to  prove 
that  such  commissions  legally  could  not  be  convened. 

The  reference,  however,  to  the  remarks  of  the  Duke  of  Wel- 
lington sufficiently  evinces  that  the  advocate  making  use  of  it 
did  not  properly  discriminate  between  military  government, 
which  the  Duke  had  in  mind,  and  which  is  governed  by  the 
laws  of  war,  and  that  martial  law,  considered  as  a  domestic 
fact,  the  exercise  of  which  was  being  argued  in  the  case  at  bar. 

1.   Mr.  David  Dudley  Field. 


THEORY,    MARTIAL    LAW    IN    UNITED    STATES.  333 

It  is  plain,  too,  that  this  arbitrary  authority  was,  in  the  argu- 
ment, held  to  be  closely  allied,  if  not  identical  with  irresponsi- 
ble power.  But  this  was  clearly  wrong.  In  this  country,  at 
least,  military  officers  can  not  exercise  such  authority  ;  it  is  in- 
consistent with  the  principles  of  our  Government,  under  which 
the  people  justly  regard  the  responsibility  of  all  public  ser- 
vants to  the  law  as  the  palladium  of  their  liberty. 

The  Supreme  Court  in  this  case,  as  is  well  known,  took  oc- 
casion to  support  the  view  that  martial  law,  under  certain  con- 
ditions, legally  could  be  enforced  in  the  United  States.  And 
while  the  justices  disagreed  upon  the  question  as  to  the  terri- 
torial limits  that  properly  should  be  assigned  to  the  exercise  of 
martial-law  power,  they  all  agreed  that,  in  cases  of  great  emer- 
gencies, when  society  was  disordered  by  insurrection  or  in- 
vasion, and  the  exertion  of  every  energy  of  government  was 
necessary  to  save  the  country,  the  exercise  of  martial  law, 
from  the  necessities  of  the  case,  then  became  legal. 

What  was  said  by  the  justices  regarding  martial  law  was  in- 
deed obiter.  That  question  was  not  before  the  court  for  de- 
termination. Upon  the  matter  at  issue  all  were  agreed.  Still, 
as  in  the  arguments  the  nature  of  martial  law  was  elaborately 
discussed,  all  the  justices,  five  expressing  the  majority  and 
four  the  minority  views,  took  occasion  to  clear  up  the  judicial 
atmosphere  which  before  had  rendered  the  subject  hazy.  Nor 
did  this  division  of  opinion  lend  greater  obscurity.  The  dif- 
ference between  opposing  views  reduced  itself  to  one  point, 
namely,  whether  or  not  martial  law  could  legally  be  enforced 
in  districts  far  removed  from  the  tread  of  contending  armies, 
or  the  operations  immediately  attendant  thereon.  The  ma- 
jority in  the  proportion  of  five  to  four  held  that  it  could  not. 

In  enforcing  martial  law  the  officers  act  within  and  not  out- 
side the  pale  of  law.  As  was  said  by  the  Supreme  Court  of 
the  United  States  in  Luther  v.  Borden,1  "unquestionably  a 
State  may  use  its  military  power  to  put  down  an  armed  insur- 
rection too  strong  to  be  controlled  by  the  civil  authority.  The 
power  is  essential  to  the  existence  of  every  government,  essen- 
tial to  the  preservation  of  order  and  free  institutions,  and  as 
necessary  to  the  States  of  this  Union  as  to   any  other  govern - 

1.  7  Howard,  1. 


334  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

ment.  The  State  itself  must  determine  what  degree  of  force 
the  crisis  demands.  And  if  the  government  of  Rhode  Island 
deemed  the  armed  opposition  so  formidable  and  so  ramified 
throughout  the  State  as  to  require  the  use  of  its  military  force 
and  the  declaration  of  martial  law,  we  see  no  ground  upon 
which  this  court  can  question  its  authority." 

The  case  which  called  forth  this  opinion  arose,  as  is  well 
known,  from  an  attempt  forcibly  to  change  the  government  of 
Rhode  Island,  and  was  an  action  of  trespass  for  assault  and 
false  imprisonment,  brought  for  breaking  and  entering  the 
plaintiff's  house  with  an  armed  force  and  taking  and  holding 
him  a  prisoner.  The  defendants,  who  were  acting  at  the  time 
in  pursuance  of  martial-law  authority,  justified,  pleading,  in 
substance,  the  existence  of  the  insurrection,  the  declaration  of 
martial  law  by  the  legislature,  that  plaintiff  was  aiding  and  abet- 
ting the  insurrection,  and  the  defendants,  members  of  an  infantry 
company  acting  under  the  governor's  orders,  broke  into  the 
plaintiff's  house  for  the  purpose  of  arresting  him.  The  court 
held  the  breaking  and  entering  entirely  justifiable  under  the 
circumstances,  declaring  in  most  decided  language  that  without 
the  power  to  proceed  to  such  extremities  the  government  would 
be  powerless  against  rebels,  the  declaration  of  martial  law  a 
useless  procedure,  the  array  of  military  force  thereunder  mere 
empty  parade  ;  but  the  court  took  care  sedulously  to  guard  the 
rights  of  the  people  by  remarking  that  no  greater  force  on  the 
part  of  officials  was  to  be  used  than  is  necessary  to  accomplish 
the  object ;  and  if  under  color  of  this  martial-law  authority 
power  be  used  for  the  purpose  of  oppression  or  any  injury  wil- 
fully be  done  to  either  person  or  property,  the  responsible  party 
would  undoubtedly  be  answerable. 

The  rule  of  amenability  here  stated  is  none  other  than  an  ex- 
tension of  the  common -law  principle  of  responsibility  when 
official  powers  are  abused.  The  correctness  of  the  rule  laid 
down  by  the  Supreme  Court  will  scarcely  be  questioned.  It 
follows  that  the  absolute  military  power  contended  for  by 
counsel  in  the  Milligan  case  is  not  possessed  by  officers  upon 
whom  is  conferred  the  duty  of  carrying  martial  law  into  exe- 
cution. However  high  they  may  soar  on  the  wings  of  authority 
their  actions  may  be  overlooked  and  inquired  into  by  a  still 
higher  power. 


THEORY,    MARITAL   TAW    IN   UNITED    STATES.  335 

Such  at  least  are  the  recognized  principles  of  the  law  ;  yet 
there  have  been  grave  although,  it  is  believed,  ill-founded  appre- 
hensions that  the  actual  facts  might  be  otherwise  ;  and  not 
alarmists  only,  but  good,  learned,  patriotic  men  have  indulged 
these  gloomy  forebodings.  "  The  danger  of  our  government," 
wrote  ex-President  John  Adams,  "  is  that  the  general  will  be  a 
more  powerful  man  than  the  President,  and  the  army  possess 
more  power  than  Congress.  The  people  should  be  apprised  of 
this  and  guard  themselves  against  it.  Nothing  is  more  essen- 
tial than  to  hold  the  civil  authorities  decidedly  superior  to  the 
military  power. "  1  The  experience  of  nearly  a  century  since 
this  was  written  has  not,  however,  confirmed  these  fears.  If 
communistic  importations  be  eliminated,  no  one  with  candor  will 
assert  that  devotion  to  the  principles  of  civil  and  religious  lib- 
erty is  anywhere  more  conspicuous  than  among  the  people  of 
the  gieat  republic  with  whom  martial  law,  while  not  unknown, 
yet  when  enforced  has  proved  but  a  mere  passing  distemper 
growing  out  of  those  temporary  disorders  incident  to  all  gov- 
ernments. 

There  is  no  portion  of  the  community  more  deeply  imbued 
with  this  sentiment  than  the  military.  Officers  trained  to  arms 
instinctively  shrink  from  the  responsibilities  and  annoyances 
incident  to  the  conducting  municipal  affairs  which  they  at  best 
but  imperfectly  understand.  Their  desire  is  that  civil  govern- 
ment shall  pursue  its  ordinary  course  with  the  assistance,  if 
need  be,  of  the  military  acting  in  conjunction  with,  yet  in  sub- 
ordination to,  the  civil  authorities.  If  we  seek  an  explanation 
of  this  we  need  look  no  further  than  the  simple  consideration  of 
self-interest,  if  we  deny  that  it  is  based  on  patriotic  sentiments, 
which  latter,  however,  forms  its  true  foundation.  While  the 
civil  authorities  act  as  indicated,  they  and  not  the  military  are 
answerable  for  results.  Few  men  desire  unnecessarily  to  as- 
sume this  responsibility.  For  the  reasons  suggested  military 
men  avoid  it.  They  can  gain  nothing  by  assuming  it.  But 
the  time  having  passed  within  which  it  is  possible  for  civil  au- 
thorities to  protect  life  and  property  and  secure  society  against 
disorder,  it  then  becomes  necessary  for  the  only  force  remaining 
in  the  community  to  act,  which,  as  pointed  out  by  the  Supreme 

i.  Works,  vol.  10,  p.  17. 


336  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

Court  in  the  opinion  just  quoted,  is  the  military.  When  officers 
of  the  army  are  called  upon  under  these  circumstances  to  en- 
force martial  law  the  situation  is  not  one  of  their  seeking,  or 
which  they  have  been  instrumental  in  bringing  about,  but  is 
forced  upon  them  by  an  overpowering  necessity,  the  result  of 
the  weakness  of  the  ordinary  powers  of  government. 

And  so  when  martial  law  is  rendered  justifiable  within  our 
own  territory  to  repel  invasion.  The  condition  of  affairs  at 
New  Orleans  in  i8i4-'i5  illustrates  this.  The  circumstances 
attending  the  exercise  of  martial  law  on  this  occasion  will  be 
more  particularly  mentioned  hereafter,  when  treating  of  the 
nature  of  the  necessity  which  alone  justifies  the  measure  ;  for 
the  present  it  suffices  to  call  attention  to  the  fact  that  the  enemy, 
flushed  with  the  triumphs  of  the  protracted  and  sanguinary 
struggle  in  the  Spanish  Peninsula,  had  landed  in  apparently 
overwhelming  force  near  the  city.  To  repel  him  became  the 
supreme  duty  of  the  hour.  All  other  considerations  became  for 
the  time  insignificant  compared  with  this.  Success  demanded 
the  united  exertions  of  the  community,  the  directing  to  that 
end,  and  with  a  single  hand  to  guide  them,  all  defensive  means 
of  the  threatened  territory. 

With  this  object  in  view  the  citizens  united  in  calling  on  the 
commanding  general  to  proclaim  and  enforce  martial  law.  The 
enemy,  advancing  in  all  the  pride  of  anticipated  success,  was 
repulsed  ;  the  flower  of  the  British  Peninsular  army  fled  before 
raw  levies  who  were  held  together  by  the  indomitable  will  of 
their  commander.  All  the  elements  of  strength  which  the  dis- 
trict afforded  were  gathered  together  to  compass  the  enemy's 
defeat.  On  that  day  was  written  one  of  the  brightest  pages  of 
the  country's  history.  Only  the  complete  military  control  ex- 
ercised over  the  community  and  all  that  was  in  it  rendered  such 
a  result  possible. 

For  the  time  being,  and  in  that  locality,  the  military  com- 
mander could  truthfully  have  said  :  "  I  am  the  State."  Speak- 
ing of  the  authority  he  then  assumed  he  afterwards  remarked 
that  he  well  knew  the  extent  of  his  ordinary  powers,  and  that 
they  were  far  short  of  that  which  necessit)^  and  the  situation 
required.  He  determined,  therefore,  to  venture  boldly  forth 
and  pursue  a  course  correspondent  to  the  difficulties  that  pressed 
upon  him.     He  had  an  anxious  solicitude  to  wipe  off  the  stigma 


Theory,  martial  law  in  united  states.  337 

cast  upon  the  country  by  the  destruction  of  the  Capital.  If 
New  Orleans  were  taken  he  knew  that  new  difficulties  would 
arise,  and  every  effort  be  made  to  retain  it,  and  that  if  regained 
blood  and  treasure  would  be  the  sacrifice.  His  determination, 
therefore,  was  formed  not  to  halt  at  trifles  but  to  lose  the  city 
only  at  the  boldest  sacrifice,  and  to  omit  nothing  that  could 
insure  success.  It  might  be  that  calculating  politicians,  igno- 
rant of  the  difficulties  that  surrounded  him,  would  condemn  his 
course,  but  this  was  not  material.  What  became  of  him  per- 
sonally he  considered  to  be  of  no  consequence.  If  disaster  did 
come  he  expected  not  to  survive  it,  but  if  a  successful  defence 
could  be  made  he  felt  assured  that  the  country,  in  the  objects 
attained,  would  lose  sight  of  and  forget  the  means  that  had 
been  employed.1 

Public  opinion  at  the  time  throughout  the  Union  approved 
his  action  as  being  both  necessary  and  patriotic,  and  in  this 
posterity  has  confirmed  the  judgment  of  his  contemporaries 
But  it  will  not  be  forgotten  that  the  situation  was  one  which 
the  commanding  general  neither  created  nor  wished  to  perpetu- 
ate. Could  he  have  fought  the  enemy  with  reasonable  chances 
of  success,  at  the  same  time  leaving  the  municipal  authorities 
undisturbed,  he  would  gladly  have  done  so.  In  fairness,  there- 
fore, this  can  never  be  cited  as  an  instance  of  military  usur- 
pation. And  although  misunderstandings  arose  with  the  local 
judiciary  regarding  the  nature  and  extent  of  the  military  au- 
thority exercised,  the  verdict  of  history  has  sustained  the  com- 
manding general  in  the  heroic  measures  he  adopted  to  drive 
from  its  soil  the  invaders  of  that  distant  frontier.  Judges  sit- 
ting after  the  event  in  that  security  and  quiet  which  the  meas- 
ures adopted  by  the  commander  alone  rendered  possible,  were 

Note. — While  martial  law  was  beiug  exercised  011  this  occasion,  a 
civilian,  Louis  Louaillier,  published  a  newspaper  article  in  the  city  re- 
flecting upon  and  protesting  against  some  of  the  acts  of  the  commanding 
general.  He  was  promptly  arrested.  Federal  Judge  Hall  issued  a  writ  of 
habeas  corpus  to  release  him.  The  judge  was  then  arrested,  kept  in  cus- 
tody a  few  days  and  then  sent  beyond  the  military  lines. 

Upon  the  restoration  of  civil  jurisdiction  the  judge  fined  the  general 
one  thousand  dollars  for  contempt,  which  was  paid  at  once.  The  money 
with  interest  was  afterwards  returned  to  him  by  Congress. 


Parton's   Life  of  Jackson,  vol.  2,  p.  60. 


338  MILITARY  GOVERNMENT   AND   MARTIAL  LAW. 

sometimes  inclined  to  question  the  legality  of  those  very  meas- 
ures the  results  of  which  they  accepted  without  hesitancy  and 
enjoyed  in  quiet  and  repose.  This  was  perhaps  not  unnatural, 
as  the  authority  temporarily  assumed  by  the  commander  was  at 
variance  with  ordinarily  recognized  judicial  rights,  and  friction 
was  the  result  ;  but  the  calm  judgment  of  the  country,  that 
exponent  of  the  intelligence  of  the  people,  by  which  is  weighed 
as  in  a  balance  the  merits  of  generals  in  the  field  and  judges  on 
the  bench,  both  then  and  since  has  overwhelmingly  sustained 
the  commander,  and  with  this  judgment  there  is  reason  to  be- 
lieve the  better  judicial  opinion  of  the  country  concurs.1 

We  thus  see  that  martial  law  is  dominant  military  rule  exer- 
cised under  ultimate  military  and  civil  responsibility.  When, 
because  of  internal  commotion,  the  bonds  of  society  are  loos- 
ened, and  the  people,  stripped  of  that  protection  which  govern- 
ment is  instituted  to  afford,  or  when,  in  presence  of  an  invad- 
ing army,  it  becomes  necessary  to  concentrate  every  element  of 
resistance  to  repel  it,  the  necessity  for  enforcing  martial  law 
arises.  Yet  it  is  not  to  be  put  in  practice  in  an  irresponsible 
manner.  As  a  rule  those  who  call  it  forth  can  be  held  strictly 
answerable  ; '-'  while  those  who  carry  it  into  execution  may  al- 
ways be  required  to  give  an  account  of  their  stewardship. 
There  is  nothing  here  to  alarm  the  good  citizen.  It  is  the 
strong  arm  of  military  power  interposed  either  between  him 
and  anarchy,  or  his  home  and  the  horrors  of  invasion. 

The  establishment  of  martial  law  does  not  of  necessity  create 
antagonism  between  the  judicial  and  the  military  authorities. 
In  fact  these  two  powerful  instrumentalities,  if  their  functions 
be  examined,  will  be  found  to  supplement  each  other  in  the 
great  work  of  preserving  order  in  the  community.  The  duty 
of  the  one  begins  where  that  of  the  other  ends.  If  the  judici- 
ary be  not  elective  it  is  placed  above  the  temptation  of  being 
influenced  by  popular  clamor.  On  that  plane  it  joins  hands 
with  the  military  in  their  efforts  to  secure  to  the  citizen  the  ad- 
vantages of  well-regulated  government.  Nor  have  the  efforts  of 
the  latter,  acting  with  calmness,  firmness,  and  discretion  under 

i.  21  Ind.,  370  ;  4  Wallace,  2.  2.  The  failing  case  would  be  where 

the  legislature  instituted  martial  law. 


Theory,  martial  law  in  united  states.  330 

martial  law,  ever  received  more  successful  vindication  than  from 
the  able  judges  who  have  adorned  the  highest  ranks  of  the  ju- 
diciary of  England  and  the  United  States. 

In  the  aspect  that  it  is  the  exercise  of  the  last  power  of  gov- 
ernment, when  civil  authorities  either  will  not  or  can  not  perform 
their  part,  martial  law  springs  out  of  the  infirmities  of  munici- 
pal law  ;  when  resorted  to  on  the  theatre  of  military  operations 
or  to  repel  invasion  it  has  its  foundations  in  the  customs  of  war. 
In  England  it  is  presented  in  the  former  view  only,  while  in 
the  United  States  not  only  has  the  Federal  Government  had 
experience  in  both  branches,  but  it  has  been  extended  to  some 
of  the  States  and  Territories  of  the  Union. 

Nor  can  more  instructive  instances  be  adduced  of  resort  be- 
ing had  to  this  law  of  necessity  than  were  afforded  by  the 
Southern  Confederacy  during  the  rebellion.  It  matters  not 
that  this  was  the  experience  of  rebels  ;  for  it  must  not  be  for- 
gotten that  though  the  Confederate  States  were  in  insurrection, 
yet  they  had  for  several  years  a  regularly  organized  govern- 
ment ;  the  people,  united  by  common  sympathy,  had  instituted  a 
compact  and  powerful  union  modeled  upon  that  whose  allegi- 
ance they  were  endeavoring  to  renounce.  The  repugnance  of 
the  people  and  authorities  of  this  formidable  rebel  government 
to  even  the  shadow  of  military  supremacy  was  conspicuous. 
And  yet  experience  quickly  taught  them  that  the  laws  of  peace 
may  not  in  all  respects  be  suited  to  the  exigencies  which  in- 
variably accompany  violent  governmental  crises. 

Whenever,  particularly  during  the  first  two  campaigns  of  the 
war,  they  were  confronted  with  a  condition  of  affairs  which 
threatened  either  the  success  of  their  arms  or  disastrous  civil 
commotions  in  their  midst,  they  did  not  hesitate  to  call  martial 
law  to  their  aid.  They  saw  that  therein  lay  their  safety  ;  for  if 
the  laws  of  peace  are  to  be  stretched,  twisted,  and  turned  to 
adapt  them  to  a  condition  of  affairs  which  they  were  never  in- 
tended to  meet,  these  laws  themselves  will  become  unsuited  to 
their  proper  functions.  The  channels  in  which  they  pursue 
their  course  are  well  understood.  But  let  them  be  diverted 
therefrom  on  the  ground  either  of  convenience  or  necessity,  and 
at  once  that  certainty  which  is  the  very  essence  of  proper  civil 
administration  disappears.  Under  such  circumstances  men 
cease  to  regard  the  law,  because  they  can  not  know  what  their 


34-0  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

rights  are  under  it.  Such  confounding  of  ideas  regarding  the 
scope  of  municipal  administration  can  not  but  affect  prejudi- 
cially the  well  being  of  the  community.  Far  better  restrict  the 
operation  of  ordinary  laws  enacted  for  and  suited  to  quiet  times 
to  their  proper  sphere,  and,, on  those  rare  occasions  which  under 
all  governments  arise,  when  public  emergencies  for  what  cause 
soever  render  these  laws  inadequate  to  meet  the  ends  for 
which  they  have  been  enacted,  temporarily  to  replace  them  by 
that  sterner,  more  summary,  yet  more  efficacious  rule  of 
the  sword,  wielded  as  it  must  be  in  all  well-regulated  States 
under  a  proper  and  abiding  sense  of  legal  responsibility. 


MARTIAL   SUPPLEMENTS    COMMON    LAW.  34] 


CHAPTER   IV. 

MARTIAL   SUPPLEMENTS    COMMON    LAW. 

The  common  law  has  been  eulogized  as  the  perfection  of 
reason.  There  is  certainly  much  in  it  to  admire.  It  was  rough- 
hewed,  indeed,  and  in  some  respects  barbarous  ;  the  many  stat- 
utes of  modern  times,  both  in  England  and  this  country,  smooth- 
ing down  its  asperities  being  evidence  of  this.  But  its  founda- 
tions were  laid  in  justice  and  fair  dealing ;  it  was  essentially  a 
law  of  freemen,  and  it  taught  men  to  rely  for  their  defence,  the 
preservation  of  their  lives,  liberty,  and  property,  upon  their  own 
right  arms.  Its  proudest  eulogium  can  never  be  written  ;  it 
exists  in  that  nation  which  grew  up  as  part  and  parcel  of  the 
common  law  itself,  and  which  has  for  centuries  increased  in 
strength  under  its  beneficent  influences.  Yet  in  one  respect  the 
common  law  was  based  on  error.  It  assumed  that  there  was 
always  at  its  disposal  an  armed  force  adequate  to  the  preserva- 
tion of  the  public  peace  and  security,  while  there  might  and  in 
fact  often  did  happen  unlawful  uprisings  which  overwhelmed 
the  civil  authority  and  for  the  time  being  left  society  a  prey  to 
disorder. 

This  weakness  was  originally  due  to  the  unbending  love  of 
freedom  of  the  people  which  rendered  them  intolerant  of  control. 
They  would  not  part  from  one  iota  of  their  natural  liberty 
until  the  necessity  of  the  sacrifice  was  fully  demonstrated. 
Moreover,  they  relied  upon  their  trusty  swords  for  righting  all 
wrongs.  But  civil  commotions  were  bound  to  arise.  No  gov- 
ernment has  or  apparently  can  exist  without  them  ;  they  seem 
to  be  inseparable  from  human  existence.  Yet  when  they  arose 
in  England  prior  to  the  establishment  of  the  regular  military 
force,  there  was  under  the  common  law  no  way  of  dealing  with 
them  except  the  illusory  one  of  calling  on  the  people  to  put 
down  the  uprisings  of  their  own  brothers,  neighbors,  and  friends 
with  whom  they  sympathized. 

It  was  the  inadequacy  of  such  a  reliance  for  the  preservation 
of  order  and  the  repression  of  lawless  violence  which  led  many 
of  the  early  sovereigns  of  England  to  resort  to  what  was  denomi- 


342  MILITARY    GOVERNMENT    AND   MARTIAL    LAW. 

nated  martial  law.  Before  finding  fault  it  would  be  well  to 
point  out  what  course  could  have  been  pursued  except  to  resort 
to  the  rule  of  force.  In  many  instances  the  alternative  ap- 
peared to  be  either  martial  law  or  anarchy.  Could  the  sover- 
eign hesitate  ?  Yet  power  needs  to  be  controlled  ;  left  unbridled 
it  soon  degenerates  into  tyranny.  England  proved  no  exception 
to  this  rule.  On  the  other  hand,  as  Hallam  remarks,  the  exist- 
ence of  a  regular  military  force  to  aid  in  the  preservation  of  order 
and  the  enforcement  of  the  laws,  now  obviates  the  necessity 
which  formerly  existed  of  the  sovereign  resorting  to  irregular 
measures  for  preserving  the  peace  and  upholding  the  dignity  of 
lawful  authority. 

The  private  citizen  under  the  common  law  may  endeavor  on 
his  own  account,  without  any  command  or  sanction  of  magis- 
trate, to  suppress  a  riot  by  any  means  in  his  power.  He  may 
disperse  or  assist  in  dispersing  those  who  are  assembled  ;  he 
may  stay  those  engaged  in  it  from  executing  their  purpose  ;  he 
may  stop  others  whom  he  may  see  coming  up  from  joining  the 
rest.  If  the  riot  be  dangerous  he  may  arm  himself  against  evil 
doers  (that  is,  to  resist  their  attacks,  but  not  to  assail  them 
with  deadly  weapons  unless  they  are  in  the  act  of  felonious  out- 
rage) ;  and  if  the  occasion  demands  immediate  action,  it  is  the 
duty  of  every  subject  to  act  for  himself  in  suppressing  riotous 
assemblages.1  And  he  may  assume  that  whatever  is  done  by 
him  honestly  in  the  execution  of  that  object  will  be  justified 
by  the  common  law. 

The  difficulty  of  the  situation  is  that  if  one  not  riotously  in- 
volved be  killed,  the  slayer  is  criminally  responsible.  On  the 
one  hand,  if  he  exceed  his  power  and  occasion  death  or  other 
injury,  he  is  liable  to  be  proceeded  against  for  murder  or  man- 
slaughter ;  and  on  the  other,  if  he  does  not  do  enough  he  is  liable 
to  be  proceeded  against  for  culpable  neglect.  Practically  the 
common  law  fails  in  the  presence  of  a  really  formidable  disturb- 
ance unless  supported  by  adequate  military  force.  Even  in 
counselling  how  this  should  be  used  the  magistracy  have  often 
hesitated  because  of  the  responsibility  involved ;  the  military, 
except  when  ordered  by  those  having  unquestioned  authority, 
naturally  hesitate  to  use  their  arms  against  the  citizen. 

i.   Blackstone,  Com.  IV,  p.  293  ;  Whiting,  War  Powers,  176  ;  Chitty,  C.  L., 
217. 


MARTIAL   SUPPLEMENTS    COMMON    LAW.  343 

Nor  could  the  military  lawfully  kill  at  common  law  even 
where  the  felon  was  caught  in  the  felonious  act  unless  this  were 
necessary  to  prevent  the  felony  being  consummated,  or  to  pre- 
vent the  felon's  escape,  or  unless  in  encounter  with  a  felonious 
or  rebellious  body  of  men.  Hence  it  is  not  surprising  that  the 
common  law,  even  with  the  assistance  of  a  subordinate  military 
force,  should  prove  not  well  adapted  to  times  of  great  civil  com- 
motion. 

In  some  respects  under  that  law  the  rioter  was  more  favorably 
situated  than  its  officers.  He  could  be  convicted  only  after  all 
reasonable  doubt  as  to  his  guilt  was  removed  from  the  minds  of 
a  jury  composed  of  his  peers.  That  guilt  had  to  be  established 
under  the  strict  technical  rules  of  evidence  applicable  to  crimi- 
nal cases,  and  all  of  which  were  especially  intended  to  guard 
the  legal  rights  of  the  criminal.  The  officer,  on  his  side,  acted 
in  suppressing  any  disturbance  at  his  peril.  If  loss  of  life 
resulted  from  his  acts  it  was  necessary  that  he  show  justification 
under  the  law  governing  homicides.  His  position  in  this  re- 
gard was  not  an  enviable  one.  It  was  necessary  for  him  to 
follow  the  precise  line  marked  out  by  the  law — often  a  difficult 
task  in  times  of  peace,  and  all  the  more  so  when  amidst  civil 
disturbances,  the  fears,  hopes,  and  passions  of  men  are  excited 
and  calm  deliberation  before  decisive  action  often  is  rendered 
impossible. 

It  has  been  said  that  the  common  law  is  based  upon  consid- 
erations affecting  (1)  the  public  good;  (2)  the  safety  of  the 
community.  But  in  emergencies  it  recognized  another  rule  as 
applicable,  namely,  the  customs  of  war.  Did  rebellion  close 
the  courts  in  fact,  resort  was  had  to  this  more  summary  rule. 
In  truth  this  was  demonstrated  to  be  a  necessity,  for  the  com- 
mon-law powers  of  anticipating  civil  disorders  were  nil,  while 
those  of  suppression  and  prosecution,  as  just  seen,  were  incom- 
petent to  cope  with  rebellion. 

When  we  consider  the  inadequacy  of  common-law  power  ef- 
fectually to  deal  with  popular  disturbances  of  magnitude  or 
fierceness,  and  the  fact  that  the  sovereign  had  not  ready  at 
hand  a  military  force  to  suppress  riots,  insurrections,  or  rebel- 
lions in  their  incipient  stages,  it  is  not  to  be  wondered  at  that 
the  crown,  when  the  civil  magistracy  could  not  protect  life  and 
secure  property,  should  resort  to  the  swifter,  more  certain,  and 
effectual  measure  of  martial  rule. 


344  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

The  danger  to  be  apprehended  was  that  this  power,  if  per- 
mitted to  be  exercised  at  all,  would  be  turned  into  an  instru- 
ment of  oppression.  And  notwithstanding  the  barons,  sword 
in  hand,  had  at  Running  Mede  in  1215  forced  from  the  crown 
an  acknowledgment  that  the  great  principles  of  liberty  em- 
braced in  Magna  Charta  were  the  law  of  the  land,  the  plea  of 
civil  commotion  might  be  used  as  a  cloak  for  the  exercise  of 
irresponsible  authority. 

Yet  the  weight  of  authority  is  to  the  effect  that  it  has  ever 
been  deemed  constitutional  for  the  sovereign  in  times  of  disor- 
der and  turbulence  to  use  the  military  power  of  the  crown  for 
the  speedy  repression  of  enormities  and  the  restoring  of  the 
public  peace.  It  has  been  conceded  always  that  there  are  times 
when  the  ordinary  course  of  justice  is,  from  its  slow  and  regu- 
lated pace,  utterly  inadequate  to  the  coercion  of  the  most  dan- 
gerous crimes  against  the  State  when  every  moment  is  critical, 
and  without  some  unusual  measures  on  the  part  of  the  author- 
ities society  would  be  disturbed  and  government  itself  shaken. 
The  extension  of  power  beyond  its  ordinary  limits  is  there- 
fore in  such  times  justified  on  the  principle  of  absolute  neces- 
sity.1 And  in  this  Mr.  Serjeant  Spankie  concurred  when  he 
wrote  that  martial  law  was  in  fact  the  power  of  social  defence, 
superseding  under  the  pressure,  and  therefore  under  the  jus- 
tification, of  extreme  necessity  the  ordinary  forms  of  justice.2  In 
such  cases  it  is  held  that  by  virtue  of  the  necessities  of  the  situ- 
ation, the  crown  in  the  exercise  of  its  prerogative,  that  is,  of  its 
right  to  do  its  duty,  at  all  hazards  to  preserve  the  peace  of  the 
realm,  proclaims  martial  law.  "  And  although,"  says  Finlason, 
"  it  might  be  doubtful  at  common  law  whether  the  exercise  of 
martial  law  would  be  justifiable  except  in  districts  covered  by 
rebellion,  yet  if  there  were  such  a  degree  of  danger  in  the  dis- 
trict by  reason  of  its  contiguity  to  the  scene  of  actual  rebellion, 
and  imminent  danger  of  its  spreading,  that  might  be  enough  to 
excuse  an  honest  exercise  of  it  under  supreme  authority,  or 
even  to  justify  it  legally/' 

As  to  the  colonies  the  Petition  of  Right  did  not  affect  the 
prerogative  of  the  crown,  which  could  scarcely  be  said  to  be 
aught  than  a  shadow  if  it  did  not  embrace  the  power  of  putting 

1.  Tytler,  Mil.  Law,  p.  52.  2.  Hough's  Mil.  Law,  p.  350.         3.  Com- 

mentaries on  Martial  Law,  p.  129. 


MARTIAL   SUPPLEMENTS    COMMON    LAW.  345 

down  rebellions  in  those  distant  possessions  by  the  firm  meas- 
ures of  martial  law.  In  the  colonies  which  afterwards  became 
the  United  States  there  existed  from  the  first  an  abhorrence 
of  military  rule.  The  suggestion  of  it  on  any  occasion  was 
received  with  aversion.  In  great  measure  the  people  had  left 
the  comforts  of  life  behind  them  to  escape  from  oppression. 
They  were  willing  to  brave  the  dangers  and  hardships  of  the 
wilderness  that  they  might  breathe  the  air  of  freedom.  For 
many  years  they  saw  no  military  force  save  that  raised  from 
among  their  own  ranks  to  ward  off  attacks  of  the  Indians,  or  to 
follow  and  punish  them  in  their  fastnesses. 

When  the  revolution  of  1775  was  precipitated,  the  people  were 
familiar  with  practical  military  life  in  a  new  country,  but  they 
had  not  contemplated  for  one  moment  the  possibility  of  depos- 
ing the  civil  by  military  authority  beyond  the  limits  of  the 
armed  camp.  Accordingly  the  proclamation  of  martial  law, 
June  12,  1775,  at  Boston  by  the  royal  governor,  Gage,  was 
reprobated  as  an  act  of  despotism.  Yet  if  such  proclamation 
were  ever  justified,  it  was  here.  The  colony  was  in  a  state  of 
insurrection.  The  royal  forces,  sent  out  to  secure  public  prop- 
erty, had  been  attacked,  compelled  to  abandon  their  enterprise, 
and  many  of  them  killed.  The  sympathy  of  the  people  was 
with  the  assailants  of  the  troops.  This  was  rebellion,  pure  and 
simple  ;  if  not,  it  were  difficult  to  show  what  constitutes  rebel- 
lion, and  it  does  not  in  the  least  affect  the  facts  as  they  then 
existed,  that  the  perpetrators  in  this  act  are  honored  by  us  as 
patriots  ;  success  made  them  that. 

On  May  3d,  1775,  Gage  wrote  to  Governor  Trumbull,  of  Con- 
necticut :  "  You  ask  whether  it  will  not  be  consistent  with  my 
duty  to  suspend  on  my  part  the  operations  of  war.  I  have 
commenced  no  operations  of  war  but  defensive  ;  such  you  can 
not  wish  me  to  suspend  while  I  am  surrounded  by  an  armed 
country,  who  have  already  begun  and  threaten  further  to  prose- 
cute an  offensive  war,  and  are  now  violently  depriving  me,  the 
king's  troops,  and  many  others  of  the  king's  subjects  under 
my  immediate  protection,  of  all  the  conveniences  and  neces- 
saries of  life  with  which  the  country  abounds."  So  of  L,ord 
Dunmore's  proclamation  of  martial  law  in  Virginia,  Novem- 
ber 7th,  same  year.  The  events  which  were  transpiring  around 
him  plainly  justified  such  action  on   his  part,  which  was  not 


346  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

taken  until  after  troops  were  being  raised  and  trained  for  the 
avowed  purpose  of  resisting  the  constituted  authorities  in  their 
efforts  to  uphold  the  law  of  the  land. 

These  and  other  similar  measures,  taken  elsewhere  by  the 
royal  governors,  were  regarded  by  the  people  as  evidences  of  a 
predetermined  plan  on  the  part  of  the  crown  to  reduce  them  to 
a  condition  but  little  removed  from  slavery.  Accordingly,  in 
the  Declaration  of  Independence,  it  was  one  of  the  charges 
brought  against  the  crown  that  it  had  affected  to  render  the 
military  independent  of  and  superior  to  the  civil  power.  Still, 
as  the  royal  governors  were  answerable  to  their  government 
for  the  maintenance  of  order  and  the  due  observance  of  the 
laws  in  their  respective  colonies,  it  would  be  difficult  to  estab- 
lish that  they  exceeded  their  authority  by  proclaiming  martial 
law.  The  course  of  justice  was  obstructed.  The  courts  per- 
formed their  functions  imperfectly.  The  executive  department 
was  thwarted  in  its  efforts  at  maintaining  order.  Troops  were 
being  raised  by  the  colonists,  arms  and  ammunitions  collected 
to  oppose  the  measures  of  government.  According  to  all  ac- 
cepted ideas  this  was  a  fitting  occasion  for  the  employment  of 
the  most  efficacious  methods  at  the  command  of  the  authorities 
even  if  it  involved  proclaiming  martial  law.  The  fact  that  they 
were  tried,  and  at  once  was  precipitated  the  struggle  which  re- 
sulted after  eight  years  in  the  complete  independence  of  the 
colonies,  in  no  manner  derogates  from  the  correctness  of  the 
position  which  the  royal  governors  took  in  their  efforts  to  cause 
the  authority  of  the  crown  to  be  respected.  It  was  their  duty 
to  enforce  the  law  as  they  found  it.  The  crown,  upon  issuing 
their  commissions,  had  expressed  especial  confidence  that  they 
would  do  this. 

The  revolution  of  1 775-' 83  was  characterized  by  heroic  sacri- 
fices. But  it  would  be  practicing  self-deception  to  imagine  that 
it  was  not  accompanied  by  the  usual  incidents  of  plunder, 
hardship,  and  oppression,  the  inevitable  concomitants  of  war, 
particularly  when  waged  to  suppress  rebellion.  On  numerous 
occasions  the  military  assumed  supreme  control  even  with  the 
colonists.  The  principle  of  the  subordination  of  military  to 
civil  power  was,  however,  never  lost  sight  of.  When  the  for- 
mer predominated  it  was  well  understood  to  be  but  for  a  pass- 
ing occasion. 


MARTIAL  SUPPLEMENTS    COMMON    LAW.  347 

Perhaps  the  most  conspicuous  instance  of  military  suprem- 
acy was  in  the  latter  part  of  1776  and  early  1777.  The  closing 
year  had  been  one  of  disaster  to  the  American  arms.  New 
York  city  with  its  adjacent  defenses  had  been  seized  by  the 
enemy.  The  commander-in-chief,  with  but  a  handful  of  troops, 
had  been  chased  almost  in  derision  across  New  Jersey.  The 
army  seemed  to  be  disintegrating,  the  terms  of  service  of  the 
troops  were  expiring,  and  a  reorganization  of  the  army  in  the 
very  teeth  of  the  enemy  was  slowly  being  carried  on  under 
circumstances  of  discouragement.  Philadelphia,  where  Con- 
gress sat,  was  threatened,  and,  to  avoid  capture,  that  body 
hastily  adjourned  to  meet  at  Baltimore.  It  was  then  that  by 
formal  resolve  of  Congress  all  affairs  of  government,  in  so  far 
as  they  related  to  the  prosecution  of  the  war,  were  placed  for 
the  time  being  in  the  hands  of  the  commander-in-chief. 

By  this  act  the  civil  was  completly  subordinated  to  the  mili- 
tary power.  But  the  trust  was  not  abused.  Whatever  it  was 
necessary  to  do  for  the  safety  of  the  country  that  the  military 
chief  did  until  Congress  again  took  up  the  reins  of  authority. 
In  his  conduct  on  this  interesting  occasion  he  acted  with  that 
moderation  which  generally  will  be  found  to  mark  the  exercise 
of  military  authority  by  other  commanders,  either  his  contem- 
poraries, or  those  who,  following  upon  later  stages  of  the  coun- 
try's history,  have  had  the  benefit  of  his  patriotic  example. 


348  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 


CHAPTER   V 


NECESSITY   JUSTIFYING    MARTIAL   LAW. 

If  we  inquire  regarding  the  nature  of  the  necessity  which 
alone  justifies  martial  law,  the  answer  is  that  it  arises  out  of  a 
condition  of  affairs  which  can  not  be  met  by  the  ordinary  muni- 
cipal authorities.  This  excludes  the  idea  of  expediency,  al- 
though it  often  may  be  difficult  to  determine  where  expediency 
ends  and  necessity  begins. 

' '  When  the  necessity  arises  the  military  power  is  paramount, 
and  the  laws  are  silent.  But  war  is  an  anomalous  condition. 
When  peace  is  restored  or  the  necessity  for  military  rule  has 
terminated,  the  supremacy  of  the  civil  laws  is  restored."  '  It  is 
true  the  court  had  not  here  in  mind  a  case  of  technical  martial 
law,  yet  the  principle  announced  as  to  the  supremacy  of  mili- 
tary rule  upon  occasions  of  necessity  is  of  the  very  essence  of 
martial  law.  In  this  instance  a  rebel  officer  had  during  the 
progress  of  the  rebellion  stolen  into  New  York  city  for  the  pur- 
pose, in  conjunction  with  others,  of  burning  it.  After  hostilities 
had  ceased  he  was  arrested  both  as  a  spy  and  for  attempted 
arson.  It  was  while  releasing  him  from  custody  under  the 
charge  of  being  a  spy2  that  the  language  quoted  was  used. 

Military  rule  was  not  unknown,  however,  in  New  York  city 
during  that  great  struggle  for  the  preservation  of  the  Union. 
On  the  13th  of  July,  1863,  a  serious  and  extensive  riot  broke 
out  there  in  opposition  to  the  draft  to  fill  the  ranks  of  the  Union 
army.  Before  it  was  suppressed  one  thousand  lives  were  sac- 
rificed either  to  the  frenzy  of  the  mob  or  the  fire  of  the  troops. 
For  several  days  the  city  was  virtually  under  mob  rule.  The 
civil  authorities,  partly  through  sympathy  with,  partly  through 
terror  of  the  rioters,  and  partly  through  inadequate  physical 
force  to  grapple  with  so  widespread  an  uprising,  were  utterly 
unable  to  enforce  the  laws.     The  military  then  took  possession 

1.  In  re  Martin,  45  Barbour,  142. 

2.  In  this  connection  see  section  1343,  R.  S.,  U.  S. 


NECESSITY   JUSTIFYING    MARTIAL    LAW.  349 

of  the  city  and  restored  order.  Had  it  not  been  for  this  ener- 
getic use  of  the  troops  the  hopes  of  the  rebels  might  have  been 
realized,  the  city  reduced  to  ashes,  and  the  cause  of  the  nation 
struck  a  dangerous  if  not  a  fatal  blow  by  the  hands  of  assassins. 

The  necessity  which  justifies  martial  law  will  vary  with  cir- 
cumstances. If  it  be  a  case  of  civil  commotion,  a  not  unnatural 
inquiry  will  at  once  be  made  regarding  the  efforts  which  the 
civil  officers,  including  the  courts,  have  put  forth  to  perform 
their  functions.  Hence  Blackstone's  remark  that  martial  law 
is  built  upon  no  settled  principle,  but  is  entirely  arbitrary  in  its 
decisions  and  ought  not  to  be  permitted  in  time  of  peace  when 
the  king's  courts  are  open  to  all  persons  to  receive  justice  ac- 
cording to  the  laws  of  the  land.1 

In  the  nature  of  things  it  is  extremely  difficult  to  fix  upon 
any  definite  rule  by  which  shall  be  determined  in  anticipation 
of  the  event  whether  or  not  martial  law  shall  be  put  in  force. 
Is  the  test  to  be  that  courts  of  justice  can  not  perform  their 
duties  ?  In  the  first  place  there  may  be  an  irreconcilable  differ- 
ence of  opinion  as  to  whether  or  not  such  exigency  has  arisen. 
Is  it  necessary  that  judges  be  actually  pulled  from  their  seats, 
or  does  it  suffice  that  the  public  disorder  renders  the  adminis- 
tration of  justice  precarious,  fitful,  uncertain,  thus  defeating 
the  purpose  for  which  courts  are  organized  ?  Again,  the  diffi- 
culties of  the  situation  may  be  increased  by  the  conduct  and 
sympathies  of  the  judges  themselves.  They  retain  the  passions 
of  men,  and  remain  to  some  extent  at  least  influenced  by  early 
education  and  prejudice.  This  is  the  common  experience. 
The  course  of  judicial  decisions  may  be  appealed  to  in  verifica- 
tion of  the  assertion.  This  is  not  said  to  detract  from  the 
dignity,  learning,  and  impartiality  of  that  noble  department  of 
government — the  judiciary.  It  needs  neither  defence  nor  praise. 
It  is  venerated  beyond  any  other  instrumentality  devised  for 
the  building  up  and  preservation  of  society.  It  is  treasured  in 
the  affections  of  the  civilized  world.  It  holds  in  its  keeping  the 
lives  and  property  of  rulers  as  well  as  of  the  people — bringing 
all  to  the  common  touch-stone  of  the  law — nor  could  any  wish 
that  this  guardianship  rested  elsewhere,  nor  could  it  be  placed 
it  safer  hands. 

1.  Vol.  1,  p.  413. 


350  MILITARY  G0VliRNM£NT  AND  MARTIAL  LAW. 

That  is  the  general  rule.  This  fact  makes  exceptions  the 
more  conspicuous.  The  elevated  standard  established  for  the 
judiciary  makes  that  standard  the  more  difficult  to  reach  and 
maintain.  Still  human  nature  is  the  same  on  the  bench  as  else- 
where. If  there  be  not  independence  of  position  there  is  not 
likely  to  be  independence  of  action.  Until  cured  by  the  act  of 
settlement,1  the  dependence  of  the  judge  upon  the  crown  was 
deemed  to  be  one  of  the  greatest  blemishes,  not  to  say  weaknesses 
of  the  English  Constitution.  Prior  to  this  judges  held  their 
seats  at  the  pleasure  of  the  king.  The  effect  of  this  was 
markedly  prejudicial  to  the  administration  of  justice.  The 
interests  of  private  subjects  meet  on  very  unequal  footing  the 
pretensions  of  the  sovereign.  "It  is  requisite  that  courts  of 
justice,"  says  Kent,  "  should  be  able  at  all  times  to  deal  im- 
partially between  suitors  of  every  description,  whether  the 
cause,  the  question,  or  the  party  be  popular  or  unpopular.  To 
give  them  courage  and  the  firmness  to  do  it,  the  judges  ought 
to  be  confident  of  the  security  of  their  salaries  and  station."  2 

If  this  be  true — and  who  will  deny  it  ? — it  is  easily  seen  that 
if  judges  are  not  so  secured  they  may  shape  their  course  to 
catch  the  popular  breeze.  They  will  not  lose  sight  of  their 
own  while  serving  the  public  interests.  To  imagine  otherwise 
would  be  plainly  illusory.  As  a  result  they  may  be  influenced 
by  that  feeling  in  some  communities  which  leads  to  a  question- 
ing of  established  authority  ;  and  whether  this  feeling  manifests 
itself  in  mere  local  riots  or  extended  rebellion,  they  naturally 
take  the  part  of  those  who  put  and  keep  them  in  office.  Judges 
under  such  circumstances  may  see  much  that  is  commendable 
in  the  actions  of  their  neighbors  and  friends  even  when  stran- 
gers do  not.  They  may  not,  when  so  situated,  be  capable,  even 
if  willing,  of  meting  out  justice  fairly  and  impartially,  and  as 
they  would  if  their  personal,  professional,  family,  and  pecuniary 
interests  were  not  so  intimately  involved.  What  boots  it,  then, 
that  courts  are  open  and  free  to  render  their  decisions  if  for  this 
or  other  cause  justice  will  not  be  administered  ? 

Not  to  mention  other  instances,  the  border  States  within  the 
Union  lines  furnished  numerous  cases  illustrative  of  this  fact 
during  the  civil  war.     The  remedy  was  martial  law.     Summary 

i.    12  aud  13  Win.  III.,  ch.  2.  2.  Vol.  1,  p.  294. 


NECESSITY  JUSTIFYING  MARTIAL  LAW.  35 1 

took  the  place  of  the  usual  courts  of  justice.  No  government 
worthy  the  name  will  be  bound  by  its  own  agents  at  the  feet  of 
a  foe  either  foreign  or  domestic.  Nor  will  this  be  permitted 
tinder  the  guise  of  legal  proceedings.  The  important  and  vital 
point  may  be,  not  that  courts  can  not,  but  that  they  will  not  do 
their  duty.  This  was  evidently  thought  to  be  the  case  in 
Ireland  in  1803.1 

When  such  a  contingency  arises,  it  is  not  only  the  right  but 
the  duty  of  the  government  whose  integrity  is  thus  assailed  to 
adopt  whatever  measures  are  necessary  to  cure  the  evil  which 
threatens  it.  That  is  what  the  Imperial  Parliament  proceeded 
to  do  during  the  Irish  rebellion,2  while  the  act  of  Congress  of 
July  19,  1867,  establishing  martial  rule  over  the  late  rebellious 
States  made  it  the  duty  of  the  military  commanders  to  remove 
from  office  all  persons  who  were  disloyal  to  the  United  States, 
or  who  used  their  official  influence  in  any  manner  to  hinder, 
delay,  prevent,  or  obstruct  the  due  and  proper  administration 
of  the  laws.  It  is  a  well-known  fact  that  this  power  was  as 
frequently  exercised  in  the  case  of  judges  as  of  others.3 

There  may  be  other  obstacles  which  equally  with  physical 
force  render  the  civil  authorities  incapable  of  serving  the  pur- 
pose of  there  being.  If  they  can  not  perform  their  duties  it 
matters  little  what  the  cause  is.  They  exist  for  the  benefit  and 
protection  of  the  people.  When,  with  the  facilities  the  law 
has  given  them,  they  cease  to  perform  their  functions,  they  be- 
come an  incumbrance  to  society.  Experience  has  everywhere 
shown  that  this  stopping  the  wheels  of  civil  government,  or 
diverting  the  course  of  affairs  into  improper  channels,  may  re- 
sult just  as  easily  in  times  of  civil  commotion  from  indisposition 
on  the  part  of  officials  as  from  the  interposition  of  physical  ob- 
stacles to  prevent  them  doing  their  duty.  The  danger  in  the 
former  case  is  the  greater  because  the  more  insidious.  When 
it  appears,  it  should  be  dealt  with  promptly  and  decisively.4 

The  same  principles  apply  in  case  of  invasion.  It  is  true 
that  the  Supreme  Court  of  the  United  States  has  said  that  mar- 
tial law  can  not  arise  from  a  threatened  invasion  ; 5  that  the  ne- 
cessity must  be  actual  and  present  ;  the  invasion  real,  such  as 
effectually  closes  the  courts  and  deposes  the  civil  administration. 

1.  43  Geo.  III.,  c.  117.  2.  See  act  just  cited.         3.  See  chapter  7,  post. 

4.  Johnson  v.  Jones,  44  Illinois,  155.         5.  Ex  parte  Milligan,  4  Wallace,  2. 


352  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

But  it  is  apprehended  that  this  language  is  to  receive  a  reason- 
able construction.  Otherwise  it  can  scarcely  stand  the  test  of 
time  and  experience. 

In  the  presence  of  invasion,  either  actual  or  threatened,  mar- 
tial law  may  become  necessary  for  two  distinct  reasons. 

First.  The  commander  upon  whom  devolves  the  duty  of  re- 
pelling the  enemy  may  be  justified  in  gathering  into  his  hand 
every  warlike  resource  of  the  district  to  direct  them  with  the 
greater  effect.  What  excuse  would  the  commander  to  whom 
was  given  the  defence  of  the  national  capital  have  if  he  failed 
to  do  this,  and  that  fair  city,  the  pride  of  the  nation,  fell  again, 
as  in  1814,  into  the  hands  of  vandals?  He  would  be  with- 
out excuse.  There  is  not  involved  here  in  any  degree,  neces- 
sarily, the  question  of  the  courts  being  closed  by  overpowering 
force,  and  the  people,  including  the  magistrates,  may  all  be  in- 
spired by  a  spirit  of  patriotism.  It  might  be  wholly  practicable 
for  the  courts  to  sit  as  usual ;  marshals  might  serve  their  pro- 
cesses ;  juries  return  indictments,  or  determine  questions  of  fact. 

"  Nothing  short  of  necessity  can  justify  a  recourse  to  martial 
law,"  says  Mr.  Hare,  "but  such  a  necessity  may  exist  before 
the  blow  falls.  An  army  assembled  in  Canada  might  necessi- 
tate extraordinary  measures  of  precaution  on  the  northern 
frontier,  although  no  hostile  force  had  crossed  the  line.  So  the 
able-bodied  population  of  Philadelphia  might  have  been  forcibly 
enrolled  to  provide  for  the  defence  of  the  city  in  the  summer  of 
1863,  while  Lee's  army  was  still  in  Maryland,  and  before  he 
entered  Pennsylvania."  And  he  observes  that  by  confining 
the  necessity  to  actual  and  excluding  threatened  invasion  the 
Supreme  Court  in  Ex  parte  Milligan  went  too  far,  thus  unduly 
limiting  the  right  of  the  military  authorities  to  provide  for  the 
safety  of  the  community.1 

The  municipal  law  provides  no  means  for  pressing  all  classes 
into  the  defending  army  in  an  emergency,  or  for  directing  all 
the  resources  of  the  country  to  the  single  purpose  of  defeating 
and  driving  back  an  invader.  At  such  times  the  last  effective 
power — the  military — is  resorted  to  and  becomes  for  the  time 
paramount.  It  may  be  said  that  here  is  illustrated  the  maxim 
'  necessity  has  no  law, '  but  at  the  same  time  is  exemplified  that 

t.  American  Constitutional  Law,  v.  2,  p.  964. 


NECESSITY  JUSTIFYING   MARTIAL   LAW.  353 

other  maxim  of  good  government,  '  public  is  greater  than  pri- 
vate necessity. ' 

In  his  correspondence  growing  out  of  the  Caroline  affair  Mr. 
Webster,  while  affirming  the  rule  which  regards  as  inviolable 
neutral  territory,  describes  a  case  of  necessity  which  would  jus- 
tify a  belligerent  in  disregarding  the  rule.  The  application  of 
the  law  of  necessity  is  different  from  that  which  we  have  just 
described  as  justifying  the  declaration  of  martial  law  to  repel 
invasion,  but  the  principle  involved  is  the  same.  That  states- 
man and  constitutional  lawyer  admitted  that  the  necessity  of 
self  defence  might  justify  hostility  in  the  territory  of  a  neutral 
power,  but  to  do  this  such  a  necessity  must  be  shown,  instant, 
overwhelming,  leaving  no  choice  of  means,  and  no  moment  for 
deliberation.  He  added  that  the  aggressor  must  not  do  any- 
thing unreasonable  or  excessive,  since  the  act  justified  by  the 
rule  of  self  defence  must  be  limited  to  that  necessity,  and  kept 
clearly  within  it.1 

As  further  illustrating  this  principle  there  may  be  cited  sev- 
eral instances  where,  in  order  that  frontier  settlers  might  be 
protected,  United  States  troops  have  followed  hostile  Indians 
across  the  line  to  their  strongholds  in  the  mountains  of  Mexico  at 
a  time  when  there  was  no  agreement  that  such  action  mutually 
should  be  permitted  the  armed  forces  of  the  two  republics.  A 
present  overpowering  necessity  alone  could  justify  what  other- 
wise would  be  international  discourtesy,  leading,  perhaps,  to 
grave  complications  ;  but  as  no  rule  had  been  agreed  upon 
between  the  two  governments,  necessity,  'which  has  no  law,' 
forged  one  meet  for  the  occasion. 

In  these  instances  of  the  invasion  of  friendly  territory  the 
government  whose  officer  was  directly  an  international  tres- 
passer would  be  answerable  to  the  other  under  the  laws  of 
nations.  The  officer  himself,  except  in  the  rare  instance  when 
his  conduct  was  disavowed  by  his  government,  would  not  be 
responsible. 

On  the  other  hand,  when  the  commander  upon  whom  has 
been  devolved  the  duty  of  repelling  hostile  invasion  assumes  to 
establish  martial  law  because  of  alleged  necessity  for  the  meas- 
ure, the  correctness  of  his  conclusions,  as  we  have  seen,  may  be 


1.  Diplomatic  and  official  papers,  pp.  ii2-'20. 


354  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

judged  by  courts  and  juries  whenever  his  acts  are  subsequently 
drawn  in  question.  Yet  the  determining  principle  of  necessity 
is  the  same  in  both  instances.  And  it  generally  will  be  found 
to  justify  the  measures  adopted.  The  officer  who  assumes  ex- 
traordinary authority  under  such  circumstances  does  so,  it  is 
true,  under  responsibility.  This  is  a  necessary  check  upon 
capricious  and  oppressive  conduct.  But  in  judging  of  his 
actions  his  surroundings  at  the  time  are  not  to  be  forgotten  ;  on 
the  contrary,  they  are  a  preponderating  factor  in  determining 
the  merits  of  the  case,  and  if  he  act  with  prudence,  decision, 
and  a  judgment  enlightened  by  his  opportunities  for  observation 
and  the  single  desire  to  serve  his  country  well  and  loyally  in  its 
hour  of  need,  he  has  little  to  fear.1 

We  have  thus  far  considered  the  necessity  for  martial  law 
which  results  from  foreign  invasion  in  the  view  only  that  the 
commander  may  direct  with  greatest  effect  all  the  power  and 
resources  of  the  district  to  the  one  object  of  defeating  the 
enemy.  We  will  now  examine  this  necessity  from  another 
point  of  view,  the  resulting  terror,  demoralization,  even  disin- 
tegration of  society  which  sometimes  accompanies  threatened 
invasion. 

Amidst  this  general  consternation  the  military  commander 
may  be  the  sole  person  inspired  with  confidence.  He  may  en- 
courage the  people  to  pursue  their  affairs  undeterred  by  fear  of 
the  enemy.  But  it  by  no  means  follows  that  he  will  be  able  to 
reassure  those  whom  he  thus  would  quiet.  An  undefined 
dread  of  evils  to  come  may  have  paralyzed  the  usually  strong 
arm  of  civil  authority.  Secret  enemies,  disguised  as  friends, 
contribute  to  the  feeling  of  unrest.  The  machinery  of  munici- 
pal government  stands  still.  This  may  be  unattended  by  civil 
commotion,  no  trace  of  which  may  anywhere  be  discernible. 
No  disposition  may  exist  to  thwart  the  ordinary  authorities  in 
the  performance  of  their  duties.  And  yet,  while  attention  is 
fixed  upon  one  object  only,  and  every  energy  is  bent  to  the  one 
paramount  duty — repelling  the  invasion — the  power  of  effect- 
ively carrying  on  the  civil  government  imperceptibly  may  pass 
away.  But  no  community  can  live  without  government,  which 
in  times  of  great  excitement  must  needs  be  active  and  forceful. 

i.  Hare,  Constitutional  Law,  v.  2,  p.  920. 


NECESSITY  JUSTIFYING   MARTIAL   LAW.  355 

And  if  it  become  incompetent  to  perform  its  functions,  not  be- 
cause of  opposition  but  from  mere  inanition,  nothing  remains 
but  to  call  forth  that  great  reserve  power  martial  law. 

Nor  is  the  condition  of  affairs  rendering  this  necessary  the 
mere  creation  of  fancy.  It  is  the  usual  attendant  upon  inva- 
sion when  resisted  with  spirit  by  a  people  devoted  to  their  coun- 
try's cause.  Not  to  mention  others,  recall  the  events  in  the 
Spanish  Peninsula  from  1807  to  18 14,  when  ambition  carried 
the  eagles  of  France  first  proudly  in  advance,  only  to  be  driven 
back  sullenly  and  defiantly  to  the  protection  of  their  native 
soil !  Witness  the  swiftly  following  descent  by  a  portion  of  the 
victorious  British  army  upon  the  almost  unguarded  coast  of 
Louisiana,  and  the  resulting  declaration  of  martial  law  as  a 
necessary  measure  of  defence,  at  the  solicitation  of  all  classes  of 
the  people — an  act  of  fortitude  and  patriotism,  the  harbinger  of 
the  decisive  victory  over  the  invader   which  was  its  reward  ! 

The  declaration  of  martial  law  in  New  Orleans  in  18 14,  here 
referred  to,  was  the  better  to  unite  the  resources  of  the  district 
against  the  enemy.  At  the  same  time  the  feeling  of  un- 
certainty, discontent,  and  suspicion  against  the  foreign  element 
demanded  that  the  most  stringent  measures  to  counteract  their 
machinations  should  be  adopted.  When  martial  law  was  pro- 
claimed the  enemy  was  not  actually  at  the  city  limits.  There 
was  no  physical  obstacle  to  prevent  the  courts  from  sitting. 

Speaking  of  the  general's  proclamation,  Parton  says,1  "  it  was 
wholly,  greatly,  and  immediately  beneficial.  The  panic  sub- 
sided. Confidence  returned.  Cheerfulness  was  restored.  Fac- 
tion was  rendered  powerless  ;  treason  on  any  considerable  scale 
impossible.  While  the  danger  lasted  not  a  voice  was  raised 
against  a  measure  which  united  the  people  as  one  man  against 
the  invaders  of  their  soil.  It  was  felt  to  be  a  measure  which 
grew  out  of  the  necessities  of  the  crisis,  and  one  which  alone 
was  adequate  to  it. ' ' 

On  the  13th  of  March,  1815,  official  information  was  received 
of  the  treaty  of  peace  and  martial  law  was  withdrawn.  Mean- 
while, the  enemy,  beaten  but  hoping  for  reinforcements,  re- 
mained hovering  on  the  coast  anxious  to  wipe  off  the  stigma  of 
defeat.     Under  these  circumstances  the  commanding  general 

1.  Life  of  Jackson,  vol.  2,  p.  58  et  seq. 


356  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

did  not  deem  it  wise  to  abate  the  rigors  of  military  rule.  He 
had  gathered  into  his  hands  the  reins  of  government  for  the 
purpose  of  beating  the  enemy  and  saving  the  country,  and  not 
until  this  object  was  attained  beyond  question  was  he  willing 
to  relax  the  rigor  of  the  measures  he  had  adopted. 

The  commander  there  was  the  legally  and  constitutionally 
authorized  agent  of  the  government  and  the  country  to  defend 
that  city  and  the  adjacent  territory.  His  duty  as  prescribed  by 
the  Constitution  and  the  laws,  as  well  as  the  instructions  of  the 
War  Department,  was  to  defend  the  city  and  country  at  every 
hazard.  It  was  conceded  that  nothing  but  martial  law  would 
enable  him  to  perform  that  duty.  If,  then,  his  power  was 
commensurate  with  his  duty,  and  he  was  authorized  to  use  the 
means  essential  to  its  performance,  and  to  exercise  the  powers 
necessary  to  remove  all  obstructions  to  its  accomplishment,  he 
had  a  right  to  declare  martial  law  when  it  was  ascertained  and 
acknowledged  that  this  would  enable  him  to  defend  the  city 
and  country. 

This  principle  has  been  recognized  and  acted  upon  in  all 
civilized  nations,  and  is  familiar  to  those  who  are  conversant 
with  military  history.  The  principle  is  that  the  general  may 
go  so  far  and  no  farther  than  is  absolutely  necessary  to  the 
defense  of  the  city  or  district  committed  to  his  protection.  To 
this  extent  General  Jackson  was  justified  ;  if  he  went  beyond  it 
the  law  was  against  him.  But  in  point  of  fact,  he  did  not 
supersede  the  laws,  nor  molest  the  proceedings  of  the  civil  tri- 
bunals any  further  than  they  were  calculated  to  obstruct  the 
execution  of  his  plans  for  the  defence  of  the  city.  In  all  other 
respects  the  laws  prevailed  and  were  administered  as  in  times 
of  peace;  until  the  legislature  of  the  State  of  Louisiana  passed 
an  act  suspending  them  until  the  month  of  May  in  consequence 
of  impending  danger  that  threatened  the  city. 

There  are  exigencies  in  the  history  of  nations  as  well  as 
individuals  when  necessity  becomes  the  paramount  law  to  which 
all  other  considerations  must  yield.  It  is  that  first  great  law 
of  nature  which  authorizes  a  man  to  defend  his  life,  his  person, 
his  wife  and  children,  at  all  hazards  and  by  every  means  in  his 
power.  It  is  that  law  which  enables  courts  to  defend  them- 
selves and  punish  contempts.  It  was  this  same  law  which 
authorized  the  general  to  defend  New  Orleans  by  every  means 


NECESSITY  JUSTIFYING    MARTIAL    LAW.  357 

in  his  power  which  would  accomplish  the  end.  In  such  a  crisis 
necessity  confers  the  authority  and  defines  its  limits.  If  it  be- 
come necessary  to  blow  up  a  fort,  it  is  right  to  do  it ;  if  it  be 
necessary  to  sink  a  vessel,  it  is  right  to  do  it ;  if  it  be  necessary 
to  burn  a  city,  it  is  right  to  burn  it. 

The  ground  upon  which  it  is  held  that  this  extraordinary 
power  is  inherent  and  original  in  all  courts  and  deliberative 
bodies,  is  that  it  is  necessary  to  enable  them  to  perform  their 
duties  imposed  upon  them  by  the  Constitution  and  the  laws. 
It  is  said  that  the  divine  and  inalienable  right  of  self-defence 
applies  to  courts  and  legislatures,  to  communities  and  states 
and  nations,  as  well  as  to  individuals.  The  power,  it  is  said, 
is  co-extensive  with  the  duty  ;  and  by  virtue  of  this  principle 
each  of  these  bodies  is  authorized  to  use  not  only  the  means 
essential  to  the  performance  of  the  duty,  but  also  to  exercise 
the  powers  necessary  to  remove  all  obstructions  to  the  dis- 
charge of  that  duty.1 

If  it  be  true  that  this  principle  of  an  overpowering  necessity 
is  of  universal  applicability,  as  here  claimed,  indeed  as  univer- 
sally conceded,  even  amidst  the  calm  of  peaceful  surroundings, 
as  when  courts  and  legislatures  resort  to  it  to  vindicate  their 
dignity,  with  how  much  greater  reason  can  it  be  invoked  dur- 
ing the  turbulent  scenes  of  war,  actual  or  threatened,  when 
deliberation  is  out  of  the  question,  and  for  the  commander  to 
hesitate  is  to  endanger  all.  Tested,  therefore,  by  the  standard 
of  acknowledged  maxims  of  government,  the  wisdom  and 
legality  of  the  course  pursued  in  declaring  martial  law  upon 
this  occasion  is  fully  sustained. 

To  add  to  the  embarrassment  of  the  general's  situation  the 
inhabitants  of  Louisiana  were  not  all  thoroughly  loyal.  The 
territory  but  ten  years  before  had  passed  by  treaty  from  foreign 
domination.  A  large  proportion  of  the  people  spoke  a  foreign 
language.  They  but  indifferently  responded  to  those  senti- 
ments of  patriotism  which  should  unite  the  community  as  one 
man  to  repel  invasion  at  whatever  cost  of  life  and  property. 
Evidence  of  this  is  found  in  the  fact  that  on  the  8th,  12th,  and 
30th  of  August  and  30th  of  September,  1814,  the  governor  of 
Louisiana  had  expressed  his  deep  chagrin   at  finding  a  large 


1.  Debate,  1st  session,  28th  Congress  (1843). 


358  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

number  of  the  people  inimical  to  the  American  cause  and  favor- 
able to  the  enemy,  and  agreeing  with  the  general  that  the 
country  was  filled  with  spies  and  traitors.  It  would  seem  then 
that  the  declaration  and  strict  enforcement  of  martial  law  was, 
under  the  then  existing  circumstances,  a  patriotic  duty — a 
duty  performed  without  hesitation  by  the  distinguished  soldier 
who  fortunately  there  commanded.  And  his  vigilance,  his 
energetic  and  successful  efforts  to  repel  an  insolent  invader,  have 
caused  his  name  to  be  honored  among  those  who  have  done 
most  to  illustrate  the  constancy  and  valor  of  the  nation's  arms. 

Under  the  influence  of  the  common  law,  which  was  centuries 
in  developing  and  coming  to  full  fruition,  there  grew  up  a  peo- 
ple who  have  gone  forth  to  plant  the  seeds  of  civil  liberty  in  the 
remotest  corners  of  the  earth.  Yet  no  sooner  did  they  venture 
beyond  their  original  island  home  than  it  became  apparent  that 
whilst  admirably  adapted  to  an  insular  community  in  times  of 
peace,  the  common  law,  because  of  the  rigidity  of  its  rules,  was 
but  illy  suited  to  the  variable  circumstances  attendant  upon  a 
strife  for  existence  waged  between  the  nation  on  one  side  and 
those  who  would  destroy  it  on  the  other. 

In  England  the  legislature  lent  its  aid.  By  statute  i ,  George 
I., — the  riot  act — it  was  made  a  capital  felony  for  persons  riot- 
ously assembled  to  the  number  of  twelve  or  more  so  to  con- 
tinue for  one  hour  after  proclamation  by  a  justice  of  the  peace 
requiring  them  to  disperse.  This  raised  what  before  was  a 
mere  misdemeanor  to  the  grade  of  felony,  punishable  by  death. 
The  common  law,  as  we  have  seen,  stepped  in  here,  and  by  re- 
quiring all  lookers-on  to  suppress  felonies  actually  being  per- 
petrated, even  killing  the  felons  if  they  could  not  be  arrested, 
greatly  strengthened  the  hands  of  authority.  In  theory,  at 
least,  all  that  was  needed  now  was  concert  of  action  between 
the  officers  of  the  law  and  the  well-ordered  portion  of  the  com- 
munity. 

But  it  is  practically  very  difficult  to  secure  such  concert  of 
action.  Civil  officers  are  slow  to  assume  unusual  responsibility 
even  in  times  of  riot  or  other  great  disturbances.  This  causes 
delay  of  which  the  evil-disposed  ever  will  take  advantage. 
Hesitancy  on  the  part  of  those  in  authority  at  such  times  is 
fraught  with  peril. 


NECESSITY  JUSTIFYING   MARTIAL    LAW.  359 

Promptly  to  unite  the  law-abiding  elements  to  put  down 
numerous  malcontents  is  well-nigh  impossible.  Even  after 
the  riot  act  was  read  a  necessity  was  found  still  to  exist  for 
using  a  force  susceptible  of  prompt  and  more  effective  action. 
This  is  the  military.  Kept  back  as  a  last  resort,  it  will,  if  dis- 
creetly used,  restore  quiet  and  give  that  security  to  society 
which  the  civil  law  can  not.  That  is  its  function  on  such  oc- 
casions. The  experience  of  nations  has  shown  that  this  con- 
fidence in  the  soldier  is  not  in  danger  of  being  abused,  so  long 
as  the  government  itself  is  administered  for  the  public  good. 
Martial  law  when  thus  exercised  is  based  upon  the  necessities 
of  social  organization. 

An  instructive  illustration  of  this  was  afforded  in  the  early  part 
of  1 86 1  by  the  United  States  military  authorities  in  Baltimore, 
Maryland.  That  State  had  never  attempted  formally  to  secede 
from  the  Union.  Yet  there,  as  in  some  other  doubtful  States  on 
the  border  line  of  rebellion,  disloyalty  was  scarcely  disguised, 
and  if  treason  did  not  manifest  itself  in  overt  acts  the  spirit  of  dis- 
affection was  widespread.  It  became  necessary  for  the  safety 
of  the  National  Capital  to  extinguish  with  an  energetic  hand 
these  smouldering  embers  of  rebellion,  which,  blazing  forth, 
led  to  the  attack  upon  the  Sixth  Massachusetts  Volunteers 
on  the  19th  of  April  while  they  were  hastening  to  the  relief 
of  Washington  City.1  On  June  24,  1861,  Uieutenant-General 
Scott  directed  the  general  commanding  the  Annapolis  depart- 
ment, in  which  Baltimore  was  situated,  to  arrest  the  Baltimore 
marshal  of  police  and  the  police  board.2  The  department 
commander  took  virtual  military  control  of  the  city.  In  a 
proclamation  he  let  it  be  known  that  he  did  not  intend  to 
interfere  with,  but  support  the  civil  government.  The  fact  was 
put  prominently  forward,  however,  that  combinations  to  give  aid 
and  comfort  to  the  enemy  existed  not  only  in  the  city  of  Balti- 
more, but  elsewhere  in  the  department,  and  that  the  arrested 
officials  were  cognizant  of  these  combinations  and  sympathized 
with  their  objects.  The  people  were  informed  that  in  so  far  as 
the  paramount  object  of  preserving  the  Union  permitted  the 
civil  authorities  would  be  upheld  in  the  performance  of  their 
functions. 


R.  R.  S.,  1,  vol.  II,  pp.  7-21.  2.  R.  R.  S.,  1,  vol.  II,  pp.  138-156 


360  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

This  in  fact  was  placing  the  city  under  martial  law.  No  use 
of  words  could  change  the  state  of  affairs  actually  existing. 
The  civil  laws,  enforced  through  their  appropriate  officers,  ope- 
rated no  farther  than  the  military  commander  decreed  that 
they  should.  The  civil  was  wholly  subordinated  to  the  mili- 
tary power.  Martial  law  could  scarcely  go  further  than  that. 
It  is  true  that  no  proclamation  had  brought  it  into  existence  ; 
it  existed  in  fact  despite  official  protestations  to  the  contrary. 

Yet  courts  of  justice  sat  undisturbed  by  mob  or  other  physical 
violence  ;  the  police  regularly  patrolled  their  beats  ;  civil  offi- 
cers of  all  grades  performed  the  duties  assigned  in  the  conduct 
of  municipal  affairs.     Upon  the  surface  all  seemed  smooth. 

It  was  from  the  unseen  yet  universably  felt  under-current  of 
sympathy  with  those  who  were  openly  seeking  to  destroy  the 
Union  that  danger  was  to  be  apprehended.  It  was  pre-em- 
inently the  situation  described  by  the  minority  in  Ex  parte  Mil- 
ligan  when  they  observed  that  "in  times  of  rebellion  and  civil 
war  it  may  often  happen,  indeed,  that  judges  and  marshals  will 
be  in  active  sympathy  with  the  rebels,  and  courts  their  most 
efficient  allies  ; ' '  and  further,  that  ' '  these  courts  might  be  open 
and  undisturbed  in  the  execution  of  their  functions,  and  yet 
wholly  incompetent  to  avert  threatened  danger,  or  to  punish 
with  adequate  promptitude  and  certainty  the  guilty  conspir- 
ators. ' ' 

What  loyal  citizen  could  wish  that  the  military  had,  under 
the  circumstances,  done  less  than  assume  the  reins  of  govern- 
ment at  Baltimore  ?  There  and  then  was  demonstrated  the  im- 
portant fact  that  the  power  of  the  government  was  competent 
to  strike  down  covert  as  well  as  open  treason.  The  time  had 
come  when  the  contrary  doctrine  was  to  be  effectually  refuted, 
and  so  far  as  the  semi-disloyal  inhabitants  of  Baltimore  were 
concerned,  the  first  step  in  this  demonstration  to  the  world  that 
the  nation  possessed  self-sustaining  power  was  the  virtual 
establishment  there  of  martial  law  by  the  Union  authorities. 
In  no  other  way  than  by  such  decisive  measures  could  the  im- 
portant State  of  Maryland  have  been  kept  in  the  ranks  of  loyal 
States. 


NECESSITY   JUSTIFYING    MARTIAL    LAW.  361 

This  condition  of  affairs  led  to  the  delivering  by  Chief  Justice 
Taney  of  the  celebrated  opinion  in  the  Merry  man  case,1  in 
which  the  acts  of  the  Executive  Department  in  the  premises 
were  pronounced  usurpations,  and  the  President  was  called 
upon  to  restore  the  civil  tribunals  in  Baltimore  and  vicinity  to  un- 
disturbed control.  But  that  opinion  neither  then  nor  since  made 
any  impression  upon  the  great  mass  of  loyal  people,  nor  did  it 
cause  the  patriotic  President  for  one  moment  to  doubt  the 
legality  or  necessity  of  the  measures  taken  to  sustain  the  dignity 
and  authority  of  the  general  government  against  the  plots  of 
those  who  in  secret  gave  aid  and  comfort  to  rebellion.  The 
weak  point  in  the  Chief  Justice's  opinion  lay  in  the  fact  that  it 
ignored,  because  possibly  he  could  not  see  or  understand  the 
actual  state  of  affairs,  the  but  illy -concealed  treasonable  sym- 
pathies which  rendered  the  local  civil  authorities  inimical  to 
the  Union  cause  and  incapable  of  joining  in  measures  for  its 
support.  The  Chief  Justice  argued  from  the  premise  that  matters 
of  local  government  were  as  they  seemed.  The  Executive  De- 
partment of  the  government  knew  otherwise.  They  knew  what 
the  Chief  Justice  did  not  know,  and  what  due  to  sectional  prej- 
udice he  possibly  would  not  have  acknowledged  had  he  known 
the  facts,  that  there  existed  in  the  then  condition  of  the  municipal 
government  at  Baltimore  a  danger  as  formidable  to  the  national 
cause  as  was  presented  by  the  enemy  in  the  field.  And  the 
former  was  more  difficult  to  deal  with  ;  it  acted  under  cover, 
and  had  to  be  sought  out  in  the  dark. 

Had  the  President  hesitated  to  act  as  he  did,  making  the 
military  the  dominant  power  and  using  the  local  government 
only  as  a  matter  of  convenience,  he  would  have  been  charge- 
able with  neglect  of  duty  at  the  moment  of  supreme  impor- 
tance to  the  cause  of  the  Union.  Such  an  error  would  never 
have  been  recovered  from.  Everything  depended  upon  de- 
cision, promptness,  and  effective  action.  Fortunately  for  re- 
publican institutions,  those  at  the  head  of  national  affairs  were 
in  no  manner  recreant  to  the  great  trust  reposed  in  them  by  the 
people.  When,  to  save  the  Republic,  it  became  necessary  to 
institute  martial  law,  they  did  it,  and  posterity,  enjoying  the 
blessings  of  the  government  thus  transmitted,  cherishes  with 

1.  National  Intelligencer,  May  29,  30,  and  June  4,  1861. 


362  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

grateful  rememberance  the  names  and  services  of  those  whose 
energy,  ability,  and  devotion  to  duty  thus  rescued  the  Union 
from  threatened  destruction. 

Nor,  during  the  progress  of  the  civil  war,  did  it  always  follow 
that  to  justify  martial  law  it  was  necessary  that  the  people  sym- 
pathize with  and  covertly  aid  the  enemy.  That  was  only  one 
cause  giving  rise  to  the  martial-law  necessity.  Take  the  case 
of  Kentucky.  A  majority  of  her  people,  including  many  of 
the  wealthier  classes,  were  loyal.  It  certainly  was  not  the 
policy  of  the  national  authorities  to  bear  heavily  upon  those 
who,  amidst  the  most  trying  surroundings,  upheld  the  Union 
cause.  On  the  contrary  that  policy  was  to  favor  them  in  every 
practical  way.  Kentucky  was,  however,  a  border  State.  Her 
territory  at  first  was  overrun,  her  cities  occupied,  her  substance 
appropriated  by  rebel  hordes  ;  and  until  the  end  of  the  war 
it  ever  was  a  fond  hope  of  the  Confederacy  to  plant  the  tri- 
umphant flag  of  rebellion  permanently  upon  her  soil.  Several 
times  its  armies  temporarily  occupied  the  fairest  portions  of 
the  State  ;  only,  however,  to  be  driven  back  discomfited.  The 
effect  of  all  this  could  not  but  be  to  disarrange  and  weaken  the 
administration  of  civil  government  if  resort  were  had  only  to 
its  regularly-constituted  organs.  Rebel  emissaries  were  har- 
bored by  friends  within  the  State.  The  latter  did  not  hesitate 
to  give  aid  and  comfort  to  the  rebels  when  this  could  be  done 
without  danger  of  discovery  and  punishment.  Districts  dom- 
inated by  the  Union  arms  were  made  hatching  grounds  for 
traitorous  schemes  devised  and  carried  into  execution  by  a  small 
but  influential  minority  of  the  people,  who  lacked  either  the 
inclination  or  courage  openly  to  join  the  ranks  of  the  enemy. 

The  Federal  government  was  embarrassed  by  this  state  of 
things  in  its  efforts  to  pursue  toward  the  people  and  authorities  of 
the  State  a  consistent  or  even  a  just  course.  Regarding  the  para- 
sites who  secretly  clung  to  the  enemy  while  openly  professing 
attachment  to  the  Union,  there  was  no  trouble  except  to  find 
them  out.  The  disposition  was  to  treat  them  with  the  rigor 
their  duplicity  merited.  This,  however,  was  by  no  means  easy 
of  accomplishment.  The  bad  were  so  inextricably  mixed  up 
with  the  good  in  the  community  that  it  was  found  impossible 
to  strike  the  former  without  injuring  the  latter,  who  already 
had  sufficient  burdens  to  bear.     The  former  deserved  to  have 


NECESSITY   JUSTIFYING    MARTIAL    LAW.  363 

the  strong  hand  of  military  authority  laid  on  unsparingly  ;  the 
latter  merited  every  consideration  consistent  with  public  safety 
and  the  successful  prosecution  of  the  war  in  that  part  of  the 
theatre  of  operations.  A  rigid  enforcement  of  the  powers  of 
martial  law  could  alone  mete  out  justice  to  the  former  ;  to  the 
latter,  except  as  a  last  and  necessary  resort,  it  would  be  op- 
pression. 

This  unsettled  condition  of  affairs  continued  for  three  years. 
An  attempt  was  made  to  steer  between  military  rule  and  civil 
administration.  The  policy  failed  of  any  good  purpose  except 
to  prove  its  utter  insufficiency  either  to  punish  enemies  or  re- 
ward friends.  Finally,  the  President,  despairing  of  securing 
the  supremacy  of  the  national  authority  and  frustrating  the 
secret  combinations  of  the  enemy  by  milder  methods,  issued 
his  proclamation  placing  the  State  under  martial  law.  And  how 
much  soever  the  measure  may  have  been  condemned  by  some, 
loyal  citizens  approved  of  it  as  necessary,  and  it  was  duly  carried 
into  effect.  Nor  will  it  be  forgotton  that  this  was  the  same 
President  who  labored  so  unselfishly,  finally  sealing  with  his 
life  his  devotion  to  the  cause,  and  so  successfully,  that  the  in- 
tegrity of  the  Union  might  be  preserved. 

One  important  question  arising  out  of  the  opinion  of  the 
Supreme  Court  in  the  Milligan  case  is,  "  When  are  the  courts 
to  be  considered  open  and  in  the  proper  and  unobstructed  ex- 
ercise of  their  jurisdiction?"  Are  they  to  be  so  considered 
when,  murders  having  been  committed  or  property  illegally 
taken,  thus  rendering  security  through  the  civil  laws  a  mere 
delusion,  juries,  influenced  either  by  terror  of  or  sympathy  with 
the  malcontents,  fail  to  convict  in  face  of  the  most  conclusive 
evidence  ?  What,  so  far  as  the  ends  of  government  are  con- 
cerned, does  it  matter  whether  judges  are  driven  off  by  physical 
force,  or  their  efforts  are  paralyzed  by  wide-spread  disaffection 
to  the  laws,  which,  while  not  making  itself  openly  manifest, 
yet  renders  the  administration  of  justice  through  the  courts  a 
sham  and  a  reproach  ? 

This,  in  great  degree,  was  the  condition  of  affairs  existing  in 
Kentucky  at  the  time  the  President  placed  the  State  under 
martial  law.  It  was  a  grave  and  a  necessary  measure.  The 
civil  authorities  of  the  State,  including  the  judiciary,  could  not 
or  would  not  effectually  frustrate  the  treasonable  designs  of  the 


364  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

enemy,  countenanced  as  they  were  by  many  of  her  own  citizens. 
The  paramount  duty  devolved  upon  the  Executive  Department 
to  see  that  the  laws  were  faithfully  executed,  the  authority  of 
the  national  government  upheld  at  any  cost.  The  necessity  for 
subjecting  loyal  citizens  equally  with  disloyal  to  the  summary 
rule  of  martial  law  was  deeply  deplored.  None  regretted  this 
necessity  more  than  the  President.  But  the  time  had  arrived 
when  sentiment  gave  way  to  the  inexorable  facts  of  the  situa- 
tion. The  Executive  acted  with  becoming  promptness  and 
decision.  And  surely  it  seems  singularly  unfitting  that  those 
who  then  were  saved  from  the  secret  plottings  of  the  rebels, 
or  who  have  received  the  benefits  of  that  Union  which  these 
energetic  measures  in  no  slight  degree  contributed  to  per- 
petuate, should  find  fault  with  officers  who  reluctantly  were 
compelled  to  adopt  them.  We  have  here  the  case  of  justify- 
ing and  excusing  peril  mentioned  by  the  minority  opinion  in 
Ex  parte  Milligan,  when,  due  to  insurrection  or  civil  war  within 
districts  where  ordinary  law  no  longer  adequately  secures  public 
safety  and  private  rights,  the  President  has  authority  to  declare 
martial  law. 


FEDERAL    AUTHORITY   TO    INSTITUTE    MARTIAL    LAW.        365 


CHAPTER  VI. 

FEDERAL    AUTHORITY   TO    INSTITUTE    MARTIAL    LAW. 

The  political  organization  of  the  United  States  embraces  two 
distinct  sovereignties,  that  of  the  General  Government  and  that 
of  the  States,  each  of  which  within  its  appropriate  sphere  of 
action  is  supreme.  Martial  law  may  be  invoked  to  defend  each 
from  danger,  either  external  or  internal. 

The  Constitution  provides  that  Congress  shall  have  power  to 
make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces  ;  to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrection,  and  repel  in- 
vasion.1 Within  a  few  years  after  the  government  was  organ- 
ized it  became  necessary  to  make  use  of  this  constitutional 
power.  An  insurrection  broke  out  in  the  western  part  of 
Pennsylvania  against  the  laws  of  the  United  States.  Presi- 
dent Washington  at  once  marched  a  large  militia  force  into  the 
disturbed  district.  It  was  a  case  of  necessity.  There  was  no 
statutory  law  authorizing  this  movement  of  the  militia.  And 
it  was  this  fact  which  caused  Congress  at  its  next  session  to 
empower  the  President  to  so  employ  the  most  convenient 
militia  force  to  repel  invasion,  real  or  threatened,  of  the  United 
States,  and  to  suppress  insurrection  against  State  authority." 
The  regular  troops  were  not  thought  of  in  this  connection; 
they  were  busily  employed  on  the  Indian  frontiers.  For  twelve 
years  following  this  the  militia  alone,  of  States  adjoining  the 
scene  of  disturbance,  were  relied  upon  to  enforce  obedience 
either  to  State  or  United  States  laws,  if  it  became  necessary  to 
invoke  for  this  purpose  any  portion  of  the  military  power  of  the 
nation.  The  regular  forces  were  reserved  to  maintain  peace  in 
the  Indian  country  or  stand  ready  to  ward  off  foreign  invasion. 
By  the  act  of  March  3d,  1807,  however,  following  the  Burr 
conspiracy,3  the  President  was  authorized  to  employ  regular  as 

1.   Art.  1,  sec.  8.  2    Act,  Feb.  28,  1795,  ch.  36  (R.  S.,  5297,  529s)- 

3.   Chap.  39  (R.  S.,  5298,  1642);  Hildreth,  vol.  5,  p.  627. 


366  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

well  as  militia  forces  to  put  down  insurrection  or  remove  ob- 
structions to  the  enforcement  of  the  laws  of  the  United  States. 
It  was  in  pursuance  of  these  laws,  and  the  implied  powers 
vested  in  him  in  order  that  he  might  carry  out  the  constitutional 
injunction  to  see  that  the  laws  are  faithfully  executed,  that 
President  Lincoln  took,  immediately  after  his  first  inauguration, 
the  initatory  steps  to  put  down  the  rebellion  in  1861.1  The  oc- 
casion, however,  demanded  more  heroic  legislative  measures  ; 
consequently  the  act  of  July  29,  1861,  placed  at  his  disposal, 
whenever  there  were  unlawful  obstructions,  combinations,  or 
assemblages  of  persons,  or  rebellion  against  the  authority  of 
the  United  States,  rendering  it  impracticable  in  his  judgment 
to  enforce  the  Federal  laws  by  ordinary  judicial  proceedings, 
to  employ  the  whole  armed  force  of  the  nation,  regular  and 
militia,  to  suppress  such  rebellion.1'  The  act  of  1795  authorized 
calling  out  the  militia  of  States  nearest  the  disturbance.  That 
of  1 86 1  took  them  all,  yet  even  this  did  not  authorize  the  em- 
ployment of  the  military  power  in  all  cases  of  possible  necessity. 
Accordingly,  by  act  approved  April  20,  1871 ,  it  was  provided  that 
whenever  insurrection,  domestic  violence,  unlawful  combina- 
tions, or  conspiracies  in  any  State  so  obstructs  or  hinders  the 
Federal  laws  as  to  deprive  any  portion  or  class  of  the  people  of 
the  rights,  privileges,  immunities,  or  protection  named  in  the 
Constitution  or  secured  by  those  laws,  and  the  State  authorities 
either  can  not  or  will  not  protect  them  therein,  the  whole  mili- 
tary force  of  the  nation  be  placed  at  the  President's  disposal  to 
use  at  discretion  for  this  purpose,  first  warning  the  insurgents 
by  proclamation  to  disperse.3  There  are  numerous  other  pro- 
visions of  the  Federal  laws  authorizing  the  employment  of  the 
military  for  national  purposes,  such  as  to  enforce  the  neutrality  * 
and  quarantine  laws,5  to  execute  United  States  warrants  or 
other  lawful  process  in  certain  cases,6  for  many  purposes  in  the 
Indian  country,7  and  in  various  other  ways. 

Now,  except  in  so  far  as  the  act  of  February  28,  1795,  re- 
ferred to  insurrections  against  State  laws,  all  these  authoriza- 
tions are  for  the  maintenance  of  Federal  supremacy.  They 
provide  for  defending  the  national  Government  either  from  a 

1.  2  Black,  p.  666.  2.  Chap.  25  (R.  S.,  5298).  3.  Chap.  22 

(R.  S.,5299)-  4.  R- S.,  5287-'8.  5.  R.  S.,  4792.  6.  R.S.,  1984. 

7.  R.  S.,  2052,  2062,  2118,  2147,  2150. 


FEDERAL    AUTHORITY   TO    INSTITUTE    MARTIAL   LAW.       367 

foreign  or  domestic  foe,  or  maintaining  the  supremacy  of  the 
Federal  laws  or  the  dignity  of  the  United  States.  And  they 
seem,  taken  altogether,  equal  to  any  probable  emergency. 
Some  of  the  statutes  cited  relate  also  to  State  affairs  ;  but  that 
branch  is  not  at  present  regarded;  reference  is  here  confined  to 
the  Federal  aspect  of  the  law. 

When  the  President  proceeds  to  use  the  military  power  of 
the  nation  for  the  objects  mentioned,  he  does  it  independently 
of  State  authorities.  When  necessary  he  mdves  the  troops  to 
the  threatened  district.  It  may  be  against  the  protests  of  the 
State  authorities.  He  uses  the  requisite  force  to  sustain  the 
law,  suppress  rebellion,  or  to  repel  invasion.  The  law  entrusts 
to  his  judgment  the  determination  of  the  question  how  much 
force  the  occasion  demands.  He  is  expected  to  meet  the  crisis. 
He  takes  his  measures  accordingly,  and  if  the  condition  of 
affairs  be  such  as  heretofore  in  this  work  has  been  pointed  out 
as  justifying  the  enforcement  of  martial  law,  it  will  be  his  duty 
to  enforce  it.1 

So,  depending  upon  the  circumstances  of  each  case,  a  subor- 
dinate military  commander,  entrusted  with  great  responsibility, 
and  whose  discretionary  powers  are  equal  to  the  duty  imposed 
upon  him,  might  be  authorized  to  enforce  that  law.  "  It  will 
be  borne  in  mind,"  said  the  Supreme  Court  in  Ex  parte  Milli- 
gan,  "that  this  is  not  a  question  of  the  power  to  proclaim 
martial  law  where  war  exists  in  the  community  and  the  civil 
authorities  are  overthrown.  *  *  It  follows  from  what  has 
been  said  on  this  subject,  that  there  are  occasions  when  martial 
rule  can  be  properly  applied.  If,  in  foreign  invasion  or  civil 
war  the  courts  are  actually  closed,  and  it  is  impossible  to  ad- 
minister criminal  justice  according  to  law,  then  on  the  theatre 
of  active  military  operations,  where  war  really  prevails,  there 
is  a  necessity  to  furnish  a  substitute  for  the  civil  authorities 
thus  overthrown  to  preserve  the  safety  of  the  army  and  society ; 
and  as  no  power  is  left  but  the  military  it  is  allowed  to  govern 
by  martial  rule  until  the  laws  can  have  their  free  course."2 
The  whole  subject  of  martial  law  when  thus  instituted  by  Fed- 
eral executive  authority  must  be  determined  in  all  its  details  by 
the  President  and  his  subordinates.     The  troops  are  there  to 

I.  7  Howard,  1  ;  4  Wallace,  2  ;  21  Indiana,  370.        2:  4  Wallace,  p.  1  et  seq. 


368  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

repel  invasion  or  compel  obedience  to  the  supreme  law  of  the 
land.  If  the  confidence  be  abused,  which  is  altogether  im- 
probable, relief  can  only  come  through  repeal  of  the  law  author- 
izing the  employment  of  the  military  in  the  manner  indicated, 
the  power  of  impeachment,  or  the  responsibility  of  subordinates 
before  the  civil  courts. ' 

In  his  dissenting  opinion  in  Luther  v.  Borden,  Justice  Wood- 
bury conceded  that  a  state  of  war  may  exist,  both  foreign  and 
domestic,  in  the  great  perils  of  which  it  is  competent,  under  its 
rights  and  on  principles  of  international  law,  for  a  commanding 
officer  of  troops,  under  the  controlling  government,  to  extend 
certain  rights  of  war  not  only  over  his  camp  but  its  environs 
and  the  near  field  of  his  military  operations.2  It  will  be  remem- 
bered that  the  Supreme  Court  of  the  United  States,  Justice 
Woodbury  alone  dissenting,  full}'  sustained  the  State  govern- 
ment in  establishing  martial  law  in  Rhode  Island,  out  of  which 
the  case  cited  arose. 

The  decision  was  a  signal  triumph  for  the  friends  of  good 
government.  Attention  was  called  in  it  to  the  fact  that  the 
President  is  given  power  to  determine  which  is  the  legislature 
and  who  the  governor  in  case  of  internal  State  conflict.3  If  it 
be  said  that  this  power  is  dangerous  to  liberty  and  may  be 
abused,  the  reply  is  that  all  power  may  be  abused  if  placed  in 
unworthy  hands.  But  it  would  be  difficult  to  point  out  where 
else  the  power  would  be  more  safe  and  at  the  same  time  equally 
effectual.  When  citizens  of  the  same  State  are  in  arms  against 
each  other,  the  constituted  authorities  unable  to  execute  the 
laws,  the  interposition  of  the  Federal  government  must  be 
prompt  or  it  will  be  of  little  value.  The  ordinary  course  of 
proceedings  in  courts  of  justice  are  utterly  unfit  for  the  crisis.4 

In  relation  to  the  act  of  the  Rhode  Island  legislature  declar- 
ing martial  law,  it  was  not  necessary,  the  Supreme  Court  re- 
marked, to  inquire  to  what  extent  or  under  what  circumstances 
the  power  could  be  exercised  by  a  State.  Unquestionably  a 
military  government,  established  as  the  permanent  government 
of  a  State,  would  not  be  a  republican  government,  and  it  would 
be  the  duty  of  the  Congress  to  overthrow  it.     But  the  law  of 


3- 


Act  March  3,  1875,  25  Stat,  at  Lg.,  433.  2.  7  Howard,  41. 

Act  of  February  28,  1795,  ch.  36.  4.  7  Howard,  p.  44. 


FEDERAL   AUTHORITY   TO    INSTITUTE    MARTIAL   LAW.       369 

Rhode  Island  evidently  contemplated  no  such  government.  It 
was  intended  merely  to  meet  the  peril  wrought  by  armed  resist- 
ance to  the  existing  government.  It  was  so  understood  and 
construed  by  the  State  officials.  In  this  condition  of  things, 
the  officers  engaged  in  the  military  service  might  lawfully  arrest 
any  one  who,  from  the  information  before  them,  they  had  rea- 
sonable grounds  to  believe  was  engaged  in  the  insurrection, 
and  they  might  order  a  house  to  be  entered  and  searched,  if 
there  were  reasonable  grounds  for  supposing  he  might  be  there 
concealed. 

In  the  argument  of  the  case  before  the  court  the  right  of  the 
State  to  declare  martial  law  had  been  denied  on  the  ground  of 
the  supposed  danger  to  free  government  which  was  necessarily 
involved  in  such  a  principle.  To  support  this  view  the  prac- 
tices of  the  crown  prior  to  the  Petition  of  Right  were  cited. 
But  the  court  remarked  that  such  citations  were  wholly  irrele- 
vant, if,  as  was  evidently  true,  the  inference  was  sought  to  be 
drawn  that  because  in  the  instances  cited  from  early  English  his- 
tory an  arbitrary  power  had  been  abused  to  the  injury  of  the  sub- 
ject ;  therefore,  the  exercise  of  similar  authority  by  the  supreme 
power  in  the  State  under  limitations  which  insured  the  mainte- 
nance of  governmental  and  municipal  institutions  and  the  just 
rights  of  the  people  was  unconstitutional. 

An  important  feature  of  this  decision  was  the  statement  that 
the  existing  condition  of  affairs  at  the  time  martial  law  was 
declared  constituted  a  state  of  war.  When  that  point  is  legally  de- 
termined, or  legally  can  be  inferred,  the  Executive  Department 
of  the  government  may  at  once  proceed  to  adopt  the  necessary 
measures  to  meet  the  emergency.  Its  determination,  however, 
is  not  always  an  easy  matter.  "  If  war  be  actually  levied," 
said  the  Supreme  Court  in  another  case,  "that  is,  if  a  body  of 
men  be  actually  assembled  for  the  purposes  of  effecting  by  force 
a  treasonable  purpose,  all  those  who  perform  any  part,  however 
minute,  or  however  remote  from  the  scene  of  action,  and  who 
are  actually  leagued  in  the  general  conspiracy,  are  to  be  con- 
sidered as  traitors.  But  there  must  be  an  actual  assembling  of 
men  for  the  treasonable  purpose  to  constitute  a  levying  of  war. ' '  l 
Again,  levying  war  is  said  to  be  direct  if  it  be  immediately 

1.  Ex  parte  Bollmaii,  4  Cranch,  126;  U.  S.  v.  Burr,  Ibid-,  469. 


370  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

against  the  government  with  intent  to  overthrow  it  ;  con- 
structive, if  it  be  levied  for  the  purpose  of  producing  changes  of 
a  public  and  general  nature  by  an  armed  force.  In  the  Rhode 
Island  case  the  war  was  direct  ;  but  had  it  been  otherwise — had 
it  been  simply  for  the  purpose  by  armed  force  of  producing 
some  general  change  in  government,  or  to  accomplish  some  gen- 
eral object  without  governmental  sanction,  which,  if  desirable, 
it  was  the  duty  and  province  of  government  alone  to  bring 
about — it  would  have  been  constructively  war,  and,  under  the 
ruling  of  the  Supreme  Court,  equally  justifying,  if  the  authori- 
ties deemed  it  necessary,  the  proclamation  of  martial  law.1  This 
principle,  as  will  hereafter  more  fully  appear,  has  had  recent 
application  in  the  State  of  Idaho. 

The  militia  of  Rhode  Island  were  put  in  the  field  without 
any  thought  of  their  being  subordinate  in  any  degree  to  the 
civil  power,  or  hint  that  concerted  action  by  the  two  juris- 
dictions— military  and  civil — was  desirable.  Indeed,  it  is  a 
noticeable  fact  that  in  neither  Luther  v.  Borden  nor  in  Ex  parte 
Milligan  did  the  Supreme  Court  suggest  that  it  was  the  duty  of 
the  military,  in  moments  of  peril  to  society  or  government,  to  act 
either  in  conjunction  with  or  in  subordination  to  the  civil 
power.  Evidently  in  the  opinion  of  the  court,  when  the  time 
for  martial  law  had  arrived,  all  thought  of  the  military  acting 
a  subordinate  part  was  out  of  the  question.  Nor,  as  some 
seem  to  think,  would  a  mere  suspension  of  the  privilege  of  the 
writ  of  habeas  corpus  have  amounted  to  martial  law.  The 
suspension  would  have  been  far  short  of  that  law.  The  former, 
indeed,  is  embraced  in  the  latter,  but  does  not  constitute  the 
whole.  The  suspension  authorizes  detention  in  prison  without 
reason  shown  ;  while  martial  law  means  not  only  this,  but  may 
mean  arrest  without  warrant,  breaking  into  houses,  trials  by 
courts-military  of  civil  offenders,  and  acting  generally  under 
military  orders  to  the  exclusion  of  civil  precepts. 

The  case  of  Commonwealth  v.  Blodgett  illustrates  another 
phase  of  martial  law  growing  out  of  the  Rhode  Island  rebel- 
lion.5 The  insurgents  being  dispersed,  fled  beyond  the  limits  of 
the  State.      Blodgett,  a  militia  officer,  lawfully  engaged  un- 

i.  U.  S.  v.   Mitchell,  2  Dall.,  34S  ;  U.  S.  v.  Vigols,  2  Dall  ,  246. 
2.   10  Metcalf  (Mass.),  p.  56. 


FEDERAL   AUTHORITY   TO    INSTITUTE    MARTIAL   LAW.       37 1 

der  competent  authority,  pursued  some  of  the  fleeing  rebels 
into  an  adjoining  State,  arrested  and  carried  them  back  to 
Rhode  Island  for  trial.  This  was  plainly  an  armed  invasion  of 
friendly  territory  ;  the  act  was  repudiated  by  the  Rhode  Island 
authorities  ;  the  officer  on  demand  sent  back  to  Massachusetts 
for  trial.  Yet  the  offence  was  known  to  be  a  strictly  technical 
one,  without  any  intention  to  offend  the  majesty  of  Massachu- 
setts law;  it  was  not  intended  to  derogate  from  the  competency 
and  sufficiency  of  the  jurisdiction  of  the  authority  of  this  State 
within  her  own  limits,  but  simply  an  exhibition  of  too  great  zeal 
in  serving  the  government  of  Rhode  Island. 

In  delivering  his  opinion  in  this  case  Chief-Justice  Shaw  ad- 
mitted that  there  might  be  circumstances  which  would  render 
justifiable  the  acts  of  the  defendants.  If  there  existed  a  ne- 
cessity for  the  defence  and  protection  of  the  lives  and  property 
of  the  citizens  of  Rhode  Island,  that  Blodgett  and  his  men 
should  do  the  acts  complained  of  in  the  indictment;  or  if  there 
was  probable  cause  at  the  time  to  suppose  the  existence  of 
such  a  necessity,  the  acts  would  be  justifiable.  Whether  such 
necessity,  or  probable  cause  of  necessity  existed,  the  jury  were 
to  determine  from  all  the  facts  in  evidence. 

It  was  during  the  civil  war  and  the  reconstruction  period 
immediately  following  that  martial  law  received  most  attention 
in  this  country.  Both  parties,  and  equally  perhaps,  found  it 
necessary  to  resort  to  this  efficient  measure.  In  some  instances 
the  Executive  Department  acted  independently;  at  other  times, 
pursuant  to  laws  passed  expressly  to  meet  the  occasion  ;  while 
in  others,  the  legislature,  by  giving  express  sanction  to  what  the 
Executive  Department  had  done  in  this  regard,  adopted  the 
measures  taken  as  their  own.1 

So  early  as  August  8,  1861,  General  Canby,  commanding  the 
United  States  forces  in  the  territory  of  New  Mexico,  which  the 
rebels  had  invaded,  found  it  necessary  to  guard  against  treason- 
able designs,  correspondence,  and  aiders  and  abettors  of  the 
enemy  by  suspending  the  privilege  of  the  writ  of  habeas  corpus.1 
It  is  tru2  that  the  military  were  in  this  instance  instructed  to 
unite  with  the  civil  authorities  in  maintaining  order,  while  those 

1.  G.  O.,  A.  G.  O.,  104,  i852  ;  Ibid.,  114,  1862;  Ibid.,  73,  1863;  Act 
March  3,  1863;  Act  May  11,  i855  ;  Proclamation,  Sapt.  15,  1863;  Ibid., 
July  5,  1864.  2.    R.  R.  S.,  1,  vol.  4,  p.  62. 


372  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

guilty  of  treason  and  misprision  of  treason  were  to  be  tried  by 
civil  courts.  But  this  was  confessedly  only  a  matter  of  conven- 
ience to  the  military  authorities,  who  were  supreme.  The 
power  here  assumed,  however,  was  exercised  with  as  much 
attention  to  the  civil  rights  of  the  citizen  as  a  proper  regard  for 
the  interests  of  the  federal  government  would  admit.  Care 
was  taken  to  guard  against  abuse  of  the  unusual  authority  here 
assumed.  No  one  was  arrested  except  upon  probable  cause  of 
suspicion  of  being  dangerous  to  the  public  safety.  Immediately 
upon  arrest  an  examination  was  made,  and  if  found  innocent 
the  accused  set  free. 

It  has  been  mentioned  that  in  the  adjacent  territory  of  Ari- 
zona not  only  was  it  found  necessary  for  the  military  to  assume 
control,  as  in  New  Mexico,  but  a  government  complete  in  all 
its  parts  was  set  up  there,  first  by  the  rebel  and  continued  after- 
wards by  the  Union  commander.1  The  isolation  of  the  two 
territories  mentioned,  the  time  required  to  communicate  with 
them,  the  difficulties  and  dangers  which  beset  all  attempts  at 
such  communication,  had  the  effect  as  completely  to  render 
them  distant  colonies  as  in  the  British  Empire  are  the  West  India 
possessions.  The  military  authorities  present  were  compelled 
of  necessity  to  use  their  best  judgment  as  to  what  was  proper 
to  maintain  national  control.  The  choice  of  measures  rested 
with  the  commander.  In  him  was  vested  a  discretion  as  to  the 
means  to  be  adopted  to  preserve  order,  protect  society,  and 
render  life  and  property  secure.  This  was  to  be  exercised  by 
him  upon  the  sound  principle  that  where  discretionary  power 
is  lodged  in  a  public  officer  he  is  the  sole  judge  of  the  justifying 
facts,  and  can  only  be  held  accountable  civilly  for  corrupt  and 
criminal  abuse  of  authority. 

The  condition  of  affairs  in  Missouri,  previously  adverted  to, 
early  called  for  the  use  by  the  Union  authorities  of  measures  of 
repression.2  Although  never  officially  declared  by  the  President 
to  be  in  a  state  of  insurrection  her  people  technically  were  con- 
sidered to  be  loyal,  but  the  real  facts,  as  was  well  known,  were 
far  otherwise.  A  large  portion  of  the  wealthy  and  influential 
classes  openly  or  secretly  sympathized  with  the  cause  of  seces- 
sion.    Thousands  of  the  bravest  and  most  reckless  of  the  male 


I.   Ante,  p.  6i.  2.  R.  R.  S.,  I,  vol.  3,  p.  442. 


FEDERAL  AUTHORITY   TO   INSTITUTE   MARTIAL   LAW.      373 

population  were  enrolled  in  the  armies  of  the  enemy  or  organ- 
ized into  partisan  bands  terrorizing  the  districts  they  infested. 
These  could  all  be  dealt  with  according  to  the  laws  of  war. 
But  the  case  was  different  with  secret  rebel  sympathizers,  who 
covertly  extended  aid  and  comfort  to  the  enemy.  As  a  result, 
confidence  was  impaired,  disloyalty  became  the  boast  of  some 
who  sought  and  were  given  the  protection  of  the  government, 
while  in  some  parts  of  the  State  midnight  assassinations,  rob- 
beries, and  burnings  carried  on  by  marauders  and  guerrillas 
converted  extensive  cultivated  and  productive  districts  into 
deserts.  The  administration  of  justice  became  such  in  name 
only  ;  causes  were  determined  not  on  their  merits  and  the 
evidence,  but  according  to  the  political  bias  of  litigants  and 
loyalty  or  otherwise  of  judges  and  juries. 

If  society  was  not  to  be  permitted  to  dissolve  and  the  State 
become  the  scene  of  inextricable  confusion,  the  time  had  come 
for  the  Union  military  officers  to  act.  Accordingly,  August  14, 
1S61,  General  Fremont,  commanding  the  Western  Department, 
declared  martial  law  in  the  city  and  county  of  St.  L,ouis,  and 
extended  it  on  the  30th  of  the  same  month  to  the  whole  State. 
The  object  was  explicitly  stated  to  be  to  place  in  the  hands  of 
the  military  authorities  the  power  to  give  instantaneous  effect 
to  existing  laws,  and  to  supply  such  deficiencies  as  the  conditions 
of  war  demanded.  It  was  not  intended  to  suspend  the  civil  tri- 
bunals where  the  law  could  be  administered  by  the  regular 
officers  exercising  their  ordinary  authority.1 

General  Fremont  was  relieved  on  the  2d,  and  General  Hal- 
leck  was  appointed  to  the  command  of  the  department  0.1  the 
9th,  entering  upon  the  duties  on  the  18th  of  November,  1861. 
This  officer  perfectly  understood  the  legal  aspects  of  the  situ- 
ation and  the  relation  which  the  military  power  in  free  gov- 
ernments should  bear  to  the  civil.  On  assuming  command 
he  found  civil  government  within  the  limits  of  his  department 
in  a  state  bordering  on  dissolution.  He  saw  that  the  necessity 
existed  for  exercising  the  inherent  right  of  government  to  en- 
force martial  law.  He  was  aware  that  this  law  had  been  in- 
stituted by  his  predecessor,  yet  he  fouud  no  written  authority 
for  this  which,  in  his  judgment,  could  only  emanate  from  the 

1.  R.  R.  S.,  1,  vol.  3,  pp.  466-7. 


374  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

President.  He  at  once  informed  the  general-in-chief  of  these 
facts,  and  requested  such  written  authority.1  With  evident 
reluctance,  and  not  without  considerable  delay,  at  a  time  when 
every  day  was  big  with  important  events,  the  requisite  '  writ- 
ten authority  '  was  given  by  the  President.5 

Here  again  we  have  evidence  of  the  fallacy  of  the  doctrine 
which  would  make  the  justification  of  martial  law  depend 
solely  upon  the  fact  whether  civil  courts  are  or  are  not  in  the 
unobstructed  exercise  of  their  j  urisdiction.  What  impediments 
in  the  way  of  physical  obstacles  to  courts  sitting  existed  in  St. 
L,ouisatthis  time?  Sheriffs  might  make  their  returns,  juries 
deliberate,  judges  expound  the  law.  The  obstacle  to  the  due 
course  of  justice  was  not  of  a  physical  nature.  It  was  of  a  more 
formidable  character,  and  consisted  in  the  secret  machinations 
of  friends  of  the  enemy  who,  except  they  were  held  in  check 
by  the  strong  arm  of  military  power,  would  have  made  of  the 
municipal  government  an  engine  for  the  advancement  of  the 
rebel  cause.  To  enforce  martial  law  under  such  circumstances 
was  a  duty. 

This  condition  of  society — calm  exterior,  while  close  under- 
neath rebellion  was  fermenting — extended  to  many  other 
parts  of  the  State  dominated  by  Union  arms.  Many  of  the 
male  population  who,  during  the  day  time  and  in  presence  of 
the  Federal  troops,  seemed  to  be  peaceable,  sought  only  the 
cover  of  night  to  burn  bridges  and  destroy  railroads  and  tele- 
graphs. To  indict  and  try  them  by  civil  courts,  composed  of 
their  friends  and  associates,  would  have  been  useless,  although 
no  physical  obstacle  interposed.  Here  again  the  military 
power  alone  was  equal  to  the  occasion.  Any  one  caught  in 
these  acts  was  ordered  to  be  shot,  and  those  arrested  on  suspi- 
cion of  guilt  were  tried  by  military  commissions.  All  who  had 
guilty  knowledge  of  the  crimes  mentioned,  or  kindred  ones, 
were  considered  as  accomplices  and  treated  accordingly.  At 
last,  towns  and  counties  were  made  to  pay  for  the  destruction 
caused  in  this  way,  unless  the  presence  of  the  enemy  rendered 
its  prevention  impossible. 

As  time  passed  the  hope  was  entertained  that  the  State  might 
be  relieved  from  this  rule  which  necessity  had  forced  upon  it. 
This  expectation,  born  of  the  bright  promise  of  the  hour,  was 

I.  R.  R.  S.,  i,  vol.  8,  p.  817  ;  Ibid.,  395.  2.  R,  R.  S.,  1,  vol.  8,  p.  401. 


FEDERAL   AUTHORITY    TO    INSTITUTE    MARTIAL   LAW.       375 

doomed  to  disappointment.  The  State  remained  during  the 
war  the  theatre  of  discord — political,  civil,  military — which 
rendered  the  cessation  of  martial  law  impracticable. 

By  March,  1863,  the  Union  cause  in  Missouri  was  endangered 
from  a  different  direction.  A  bitter  and  uncompromising  spirit 
of  faction  had  broken  out  among  its  friends.  Two  parties  ex- 
isted ;  the  one  favored  a  radical,  the  other  a  conciliatory  policy 
toward  the  enemy  and  their  abettors  in  the  State.  The  rivalry 
between  them  knew  no  bounds.  The  common  cause  seemed 
to  be  lost  sight  of  in  the  local  struggle  for  ascendency.  The 
President  was  sorely  perplexed  by  this  dissension.  Openly  to 
espouse  the  cause  of  either  party  seemed  injudicious,  and  ac- 
cordingly a  middle  line  was  marked  out  which,  while  pleasing 
neither,  secured  in  a  measure  the  support  of  both. 

One  of  the  most  important  questions  that  had  to  be  dealt 
with  in  this  connection  was  that  of  martial  law.  It  was  in 
pursuance  of  the  plan  now  determined  upon  By  the  President 
that  General  Schofield,  when  he  assumed  command  of  the  de- 
partment, issued  precise  instructions  with  regard  to  the  en- 
forcement of  that  law  throughout  the  State.  These  were  con- 
cise and  clear,  and  gave  all  concerned  an  understanding  of  their 
rights  and  duties  in  the  premises. 

The  supremacy  of  military  authority  was  asserted  ;  yet, 
where  they  were  disposed  to  pursue  their  ordinary  functions, 
civil  courts  and  officers  were  encouraged  to  perform  their  duties 
as  usual.  It  was  pointed  out  that  the  mere  declaration  of  mar- 
tial law  did  not  suspend  the  functions  of  civil  government  unless 
precisely  so  stated.  The  duty  of  all  loyal  civil  officers  was  to 
execute  state  and  municipal  laws,  as  far  as  practicable,  as 
though  no  troops  were  present.  The  duty  of  the  military 
was  declared  to  be  to  abstain  from  interference  with  civil 
officers,  and  to  protect  them,  if  need  be,  while  in  the  discharge 
of  their  duties.  Resistance  to  or  interference  with  them 
in  the  discharge  of  their  legitimate  functions  by  the  military, 
was  declared  to  be  a  crime  meriting  severest  punishment.  It 
was  announced  that  the  mission  of  the  army  was  the  putting 
down  rebellion,  restoration  of  supremacy  of  civil  law,  the  en- 
couragement and  strengthening  the  authorities  until  they  were 
able  again  to  enforce  the  laws  and  maintain  peace.  The  rigors 
of  martial  law,  it  was  stated,  would  be  relaxed  as  peace  should 


376  MILITARY    GOVERNMENT   AND    MARTIAE   UW. 

be  restored  and  these  authorities  regain  their  strength.  It 
could,  however,  be  abrogated  only  when  it  was  no  longer  nec- 
essary. 

These  instructions  regarded  civil  institutions  with  respect, 
even  veneration.  They  came  as  near  retaining  municipal  su- 
premacy as  the  circumstances  of  the  times  would  permit.  Noth- 
ing more  reasonable  could  have  been  wished  by  the  most  zeal- 
ous advocates  of  civil  government.  The  military  power  from 
necessity,  not  from  choice,  was  supreme  ;  yet  the  civil  judica- 
ture where  practicable  was  left  unimpaired,  and  where  there 
was  departure  from  this  rule  those  who  assumed  the  responsi- 
bility were  held  strictly  accountable.  This  sufficiently  attested 
the  good  will  of  the  military  towards  the  civil  community, 
which  they  were  there  to  protect,  not  to  oppress. 

The  sequel  proved  how  the  best-intentioned  measures,  based 
upon  respect  for  law,  and  which,  were  that  possible,  should  have 
brought  the  people  to  a  realizing  sense  of  their  duty  as 
citizens  and  to  the  government  which  protected  them,  may 
fail  in  moments  of  great  social  disturbance  to  accomplish 
their  benign  purpose.  The  instructions — which  established 
these  rules  for  the  exercise  of  martial  law — were  issued  July  7, 
1863.  Their  effect  was  far  from  uniting  even  the  loyal  in  the 
common  cause.  The  people  unfortunately  did  not  realize  the 
generosity  of  this  policy.  To  such  extent  was  opposition  carried 
that  newspaper  articles  appeared  intended  to  excite  mutiny 
among  the  soldiers  both  national  and  state.  To  meet  this  new 
danger  orders  were  issued  two  months  later  (September  17, 
1863),  rigidly  enforcing  martial  law  against  all  who  within  the 
department  in  any  manner  encouraged  mutiny,  insubordination, 
or  disorderly  conduct,  or  endeavored  to  create  dissatisfaction 
among  the  troops.  All  persons  who  should  either  publish  or 
publicly  utter  words  calculated  to  excite  insurrection  or  lawless 
acts  among  the  people,  and  all  who  should  publish  falsehoods 
or  misrepresentations  of  facts  calculated  to  embarrass  the  exer- 
cise of  military  authority,  were  to  be  brought  for  their  offences 
before  military  commissions  for  trial.1 

When  courts  of  justice  can  not  exercise  their  jurisdiction  it  is 
admitted  on  all  hands  that  martial  law  may  be  invoked.  But 
it  by  no  means  follows  that  the  converse  of  the  proposition  is 

1.  R.  R.  S.,  1,  vol.  22.  pt.  2,  p.  546. 


FEDERAL   AUTHORITY   TO    INSTITUTE    MARTIAL    LAW.       377 

true,  and  that  this  law  can  not  be  appealed  to  unless  the  civil 
judicature  is  forcibly  deposed.  Among  many  illustrations  of 
this  fact  furnished  by  the  civil  war  the  condition  of  affairs  in 
Kansas  may  be  cited.  The  people  of  that  State  were  devotedly 
loyal.  The  armed  forces  of  the  enemy  in  few  instances  and 
then  for  the  briefest  periods  touched  her  soil.  The  border  land, 
however,  adjoining  Missouri  had  for  years  been  the  theatre  of 
lawless  deeds.  The  outbreak  of  civil  war  furnished  the  excuse 
for  long-engendered  rancor  to  be  given  full  vent  by  the  people 
of  each  against  their  neighbors  of  the  other  State.  Murders, 
stealings,  burnings,  robberies,  and  every  crime  which  character- 
izes sectional  strife  converted  fairest  districts  into  scenes  of 
desolation.  Still,  in  Kansas  particularly,  the  municipal  author- 
ities were  in  full  exercise  of  their  functions.  They  could  not, 
however,  give  security  to  life  and  property.  The  agents  of  the 
law  were  frequently  those  who  were  most  active  in  creating 
disorder  and  pursuing  their  purposes  of  avarice  or  revenge.  It 
was  under  these  circumstances  that  the  general  commanding 
the  department  of  Kansas  declared  martial  law  throughout  the 
State.1  It  was  announced  that  it  was  not  intended  to  interfere 
with  the  civil  authorities  in  cases  of  ordinary  nature  with  which 
they  were  competent  to  deal.  It  was  intended  to  put  down  the 
crimes  before  mentioned  as  so  prevalent  along  the  border,  with 
a  strong  hand  and  by  summary  process.  For  this  purpose  the 
trial  of  all  prisoners  charged  with  armed  depredations  against 
property  or  assaults  upon  life  were  to  be  conducted  before  mili- 
tary commissions,  and  interference  of  the  civil  authorities  in 
such  cases  was  prohibited. 

The  enforcement  of  martial  law  in  Baltimore  and  vicinity 
early  in  1861,  with  the  causes  that  rendered  it  necessary,  has 
been  already  adverted  to.  In  June,  1863,  when  the  insurgents 
were  actually  within  the  boundaries  of  the  State,  or  in  large 
numbers  menacing  its  invasion,  the  military  commander  again, 
but  this  time  in  a  formal  manner,  established  martial  law  in 
Baltimore  and  those  parts  of  the  State  which  formed  the  scene 
of  warlike  operations.  This  avowedly  was  to  meet  an  emer- 
gency, but  as  the  proclamation  was  never  recalled,  martial  rule 
disappeared  simply  by  falling  into  disuse.'2    The  commanding 

1.  R.  R.  S.,  1,  vol.  8,  p.  547.  2.  Wiuthrop,  Mil.  Law,  vol.  2.  p.  50. 


378  MILITARY   GOVERNMENT   AND    MARTIAL   EAW. 

general  announced  that  the  suspension  of  civil  government 
should  in  no  case  extend  beyond  the  necessities  of  the  occasion. 
All  civil  courts  and  functionaries  continued  to  discharge  their 
duties  as  in  times  of  peace,  taking  care  not  to  interfere  with  the 
exercise  of  the  military  power,  which  was  predominant.  Citi- 
zens remained  quietly  at  their  homes  pursuing  their  ordinary 
vocations,  except  when  called  upon  for  service  by  the  military 
authorities.  Seditious  practices  which  tended  to  encourage 
the  enemy  were  particularly  denounced.  The  people  and  the 
civil  magistracy  in  all  its  branches  were  given  to  understand 
that  so  far  as  the  paramount  duty  of  saving  the  country  would 
admit  of  it,  they  were  to  be  left  undisturbed  ;  yet  that  the  mili- 
tary power  was  supreme  ;  that  the  duty  of  all  was  loyally  to 
uphold  the  government  against  the  common  enemy,  and  that 
whatever  degree  of  force  it  became  necessary  for  the  military  to 
put  forth  to  sustain  the  national  cause  would  be  exercised. 

The  President,  except  in  rare  instances,1  fully  sanctioned  the 
acts  of  military  commanders  in  enforcing  martial  law,  and  in- 
deed set  them  an  example.  It  may  be  assumed  without  greatly 
erring  that  the  power  to  suspend  the  privilege  of  the  writ  of 
habeas  corpus  and  the  power  to  declare  martial  law  are  not 
widely  different. 

War  Department  order  of  August  13th,  1862,  issued  by  the 
President's  directions,  can  be  looked  upon  in  no  other  light 
than  as  an  exercise  of  martial-law  power.  'l  It  was  intended  to 
prevent  evasions  of  the  draft,  and,  to  this  end,  authorized  the 
arrest  of  those  who,  to  avoid  their  duty  to  the  country  which 
had  protected  and  nurtured  them,  were  seeking  to  leave  it  in 
its  hour  of  greatest  need;  and,  as  to  them,  it  authorized  the 
suspension  of  the  privileges  of  the  writ  of  habeas  corpus.  This 
order  was  speedily  followed  by  the  President's  proclamation 
of  September  24th,  subjecting  to  martial  law  anywhere  within 
the  United  States,  rebels  and  insurgents,  their  aiders  and  abet- 
tors, and  certain  other  disloyal  persons  or  those  guilty  of  dis- 
loyal practices  whom  it  was  declared  were  not  adequately  re- 
strained by  the  ordinary  processes  of  law  from  embarrassing  the 
government  and  aiding  the  insurrection,  and  all  of  whom  were 

1.  Proclamation,  May  19,  1862;  R.  R.  S.  1,  vol.  22,  pt.  II,  pp.  17,  41. 

2.  G.  O.,  104,  A.  G.  O.,  1862. 


FEDERAL   AUTHORITY   TO    INSTITUTE   MARTIAL   LAW.       379 

declared  to  be  liable  to  trial  and  punishment  by  courts-martial 
or  military  commissions  ;  while,  as  to  such  enumerated  classes 
of  persons,  so  tried  and  sentenced  to  imprisonment,  the  privi- 
lege of  the  writ  of  habeas  corpus  was  suspended.1  Nor  did  the 
Executive  stop  here  ;  but,  with  regard  to  all  persons  who,  dur- 
ing the  rebellion,  had  been  imprisoned  in  any  fort,  camp,  ar- 
senal, or  other  place  of  confinement  by  military  authority,  the 
privilege  of  the  writ  was  also  suspended. 

This  proclamation  carried  the  right  of  summary  arrest, 
trial,  and  punishment  to  the  extreme.  If  this  authority  law- 
fully could  be  exercised  there  remained,  in  times  of  great  national 
danger,  little  to  add  to  the  completeness  of  executive  power.  Un- 
questionably the  President,  whose  untiring  labors  to  preserve 
the  Union  have  sanctified  his  memory  in  the  affection  of  the 
American  people,  deemed  this  assumption  of  power  to  be  neces- 
sary. Nothing  in  his  public  acts  evinces  that  he  aspired  to 
the  exercise  of  unconstitutional  power.  But  he  came  upon  the 
scene  when  a  powerful  rebellion  menaced  the  existence  of  the 
Union.  Its  suppression  taxed  every  resource  of  the  Govern- 
ment to  the  utmost.  The  so-called  Confederacy  was  a  military 
despotism,  in  which  every  element  of  strength,  mental,  moral, 
physical,  and  all  the  resources  of  a  vast  and  fertile  territory, 
aided  by  assistance  from  abroad,  were  being  directed  to  the 
establishment  of  a  new  independent  government  by  disrupting 
the  old.  To  overcome  this  it  was  necessary  that  the  power  of 
the  nation  should  be  put  forth  in  a  manner  equally  earnest.  It 
was  not  a  time  for  half-hearted  efforts.  If  the  measure  were 
reasonable  in  itself,  did  not  infringe  too  much  upon  the  rights 
of  the  citizen,  and  added  to  the  military  strength  of  the  na- 
tion, it  was  in  general  held  to  be  justified.  The  rule  was  to  de- 
rive from  the  measure  every  military  advantage  possible,  leav- 
ing the  question  of  legality  for  after  consideration. 

Whether  or  not  the  President  rightfully  exercised  this  au- 
thority became  the  subject  of  animated  discussion.  He  never 
seems  to  have  doubted  it.  However,  to  quiet  the  angry  waters 
of  disputation,  Congress,  March  3,  1863,  passed  what  might  be 
looked  upon  as  an  enabling  act,  authorizing  the  President  to  sus- 
pend the  privilege  of  the  writ.     This  satisfied  those  whose  only 

1.  G.  O.,  141,  A  G.  O.,  1862. 


380  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

doubts  were  as  to  the  right  of  the  President  to  suspend  the  writ 
without  legislative  authorization.  But  it  raised  up  another 
class  of  objectors  who,  conceding  that  Congress  had  plenary 
power  in  the  premises,  denied  that  the}'  could  delegate  it  to  the 
President.  Whether  the  President  or  the  Congress  exercised 
the  power,  it  was  found  equally  impossible  to  meet  the  consti- 
tutional scruples  of  all.  By  the  terms  of  the  act  mentioned  the 
suspension  of  the  writ  during  the  then  existing  rebellion  was, 
throughout  the  United  States,  made  to  depend  upon  the  judg- 
ment of  the  President  of  the  necessity  of  the  measure  ;  and  fur- 
ther, whenever  or  wherever  the  privilege  should  be  so  sus- 
pended, no  military  or  other  officer  was  compelled,  in  answer 
to  a  writ  of  habeas  corpus,  to  return  the  body  of  any  person 
or  persons  detained  by  him  by  the  President's  authority.  The 
officer  had  only  to  make  oath  that  he  held  the  party  under  such 
authority  to  suspend  further  action  on  the  part  of  the  judge  or 
court  issuing  the  writ. 

To  give  efficacy  to  the  act  of  Congress  the  President  issued 
his  proclamation  of  September  15,  1863.  This  was  necessary 
to  give  warrant  and  protection  to  executive  officers  whose  duty 
it  became  to  enforce  the  law.  The  different  classes  of  cases 
which,  in  the  President's  judgment,  came  within  the  purview 
of  the  act,  were  thereby  announced.  They  included  all  cases 
where,  by  authority  of  the  President,  military,  naval,  and  civil 
officers  of  the  United  States  held  persons  under  their  command 
or  in  their  custody,  either  as  prisoners  of  war,  spies,  or  aiders 
or  abettors  of  the  enemy,  or  officers,  sailors,  or  seamen  enrolled, 
drafted,  or  mustered,  or  enlisted  in,  or  belonging  to,  the  land 
or  naval  forces  of  the  United  States,  or  generally  of  any  offence 
against  the  military  or  naval  service. 

By  War  Department  orders  issued  immediately  afterwards, 
all  military  officers  holding  prisoners  under  the  President's  au- 
thority as  contemplated  in  the  act,  were  directed,  should  writs 
of  habeas  corpus  be  served  upon  them  in  behalf  of  said  prisoners, 
to  make  respectful  return  thereto,  but  without  producing  the 
body  of  the  prisoner,  and  to  resist  to  the  utmost  any  attempt  to 
take  by  force  those  held  in  custody  ;  and  in  this  respect  no  dis- 
tinction was  made  between  courts  and  judges  whether  of  State 
or  Federal  jurisdiction. 


FEDERAL   AUTHORITY   TO    INSTITUTE   MARTIAL   LAW.       3S1 

Iii  the  nature  of  things  this  period  was  signalized  by  many 
seemingly  arbitrary  acts  of  Federal  executive  officers.  They 
were  not  confined  by  any  means  to  arrests  and  possible  trial  and 
punishment  of  offenders  in  the  manner  just  pointed  out.  Grave 
questions  arose  as  to  the  legality  of  such  acts  even  when  directed 
by  superior  authority.  It  was  not  the  policy  of  the  government 
to  permit  its  officers — those  who  amidst  dangers  and  difficul- 
ties had  performed  their  duty  to  the  best  of  their  ability — to  be 
vexed  therefor  by  civil  suits. 

To  protect  them  the  act  of  May  11,  1866,  one  year  after  the 
war  in  effect  closed,  was  passed,  amending  the  act  of  March  3, 
1863,  before  mentioned.  The  amendatory  law  provided  that 
any  search,  seizure,  arrest,  or  imprisonment  made,  or  acts  done 
or  omitted  to  be  done  during  the  rebellion,  by  any  officer  or 
person  under  and  by  virtue  of  any  order,  written  or  verbal, 
general  or  special,  issued  by  the  President  or  Secretary  of  War, 
or  by  any  militar)^  officer  of  the  United  States  holding  the  com- 
mand of  the  department,  district,  or  place  within  which  the  act 
was  done  or  omitted  to  be  done,  should  be  held  to  be  within  the 
purview  of  the  act  of  March  3,  1863.  There  were  liable  also  to 
arise  difficulties  as  to  the  evidence  of  authority  under  which 
officers  had  proceeded.  To  meet  this  it  was  provided  that  when 
the  order  was  in  writing  it  was  sufficient  if  the  original  were 
produced  or  a  certified  copy  thereof,  or  if  sent  by  telegram  the 
production  of  the  latter  was  prima  facie  proof  of  authenticity, 
and  if  the  original  in  either  case  could  not  be  produced  then 
secondary  evidence  was  admissible. 

So  far  as  the  political  department  of  the  government  could 
secure  them,  officers  were  thus  amply  protected  against  judicial 
:ution  for  acts  honestly  done  in  furtherance  of  the  Union 
■  from  the  commencement  of  the  rebellion  down  to  the  nth 
of  May,  1866.  This  was  eminently  proper.  It  would  have 
bee  n  singularly  unjust  to  have  abandoned  to  civil  prosecutions 
officers  who,  acting  under  the  orders  of  superiors,  had,  while 
war  was  flagrant,  taken  the  most  effective  measures  to  sustain 
the  national  cause,  yet  which  measures  might  not  be  susceptible 
of  vindication  under  the  law  of  peace. 

It  is  true  that  courts  have  not  always  taken  this  view — a  fact 
to  be  accounted  for  in  great  measure,  perhaps,  by  the  circum- 
stance that  the  judicial  determination  of  causes  so  arising  took 


382  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

place  after  the  war,  when  the  disposition  of  all  parties  was  to 
sink  the  animosities  then  engendered  out  of  sight.  By  some 
courts  and  judges  the  occasion  was  considered  a  fitting  one  to 
indulge  in  abstractions  regarding  the  rights  of  the  citizen, 
which,  however  unsuited  to  the  times  from  which  the  nation 
had  just  emerged,  were  not  particularly  harmful  at  a  later  and 
calmer  period  it  its  history. 

This  was  not  unreasonable.  The  great  principles  at  stake 
during  the  war  should  never  be  lost  sight  of.  They  should 
never  be  compromised,  abated,  or  belittled  in  one  jot  or  tittle. 
But,  this  being  kept  in  mind,  those  principles  being  guarded 
and  preserved  as  part  of  the  fundamental  creed  of  our  govern- 
ment, it  serves  no  useful  purpose  to  nurture  the  passions 
aroused  during  the  civil  war.  If,  therefore,  that  which  is  sug- 
gested above  were  the  judicial  theory,  there  were  many  con- 
siderations to  commend  it  to  favor.  Still  it  was  easy  to  carry 
such  speculations  too  far.  It  was  easy  to  forget  that  times  had 
not  always  been  peaceful,  and  that  executive  officers  whose  acts 
were  complained  of  had  to  take  action  under  circumstances 
which  placed  deliberation  out  of  the  question.  Decisions  ren- 
dered after  the  war  regarding  the  legality  of  measures  taken 
by  the  political  department  during  that  eventful  and  critical 
period  savor  much  of  theorizing.  It  may  be  that  had  executive 
officers  not  acted  as  they  did  the  courts  would  not  have  been 
able  to  sit.  Without  the  measures  they  adopted  it  might  not 
have  been  possible  to  suppress  the  rebellion.  There  is  something 
incongruous  in  the  spectacle  of  a  judicial  tribunal  inveighing 
against  instrumentalities  of  coercion  adopted  by  the  depart- 
ment of  the  government  which  is  responsible  for  the  suppres- 
sion of  a  rebellion,  when  to  the  use  of  these  instrumentalities 
the  fact  is  to  be  attributed  that  the  tribunal  itself  exists. 

Meanwhile,  as  previously  mentioned,  the  President,  by 
proclamation  of  July  5th,  1864,  had  established,  and,  by  an- 
other proclamation  of  October  12th,  1865,  had  revoked  martial 
law  in  Kentucky.1  Following  this  he,  on  December  1,  1865,  an- 
nulled and  revoked  the  proclamation  of  September  15th,  1863 
suspending  the  writ  of  habeas  corpus  throughout  the  United 

1.  Gen.  Burnside  had  previously,  G.  O.,  120,  Dp't  of  Ohio,  July  31:,  1863 
(R.  R.  S.,  1,  vol.  23,  pt.  2,  p.  572),  declared  martial  law  in  Kentucky  for  the 
same  reasons  essentially  given  by  the  President  in  his  proclamation  of 
1864. 


FEDERAL  AUTHORITY   TO   INSTITUTE   MARTIAL   LAW.      383 

States,  except  as  to  the  insurrectionary  States,  to  Kentucky,  the 
District  of  Columbia,  and  the  Territories  of  New  Mexico  and 
Arizona,  which  exception  itself  was  annulled  by  the  procla- 
mation of  April  2d,  1866,  thus  re-establishing  in  all  portions 
of  the  United  States  the  privilege  of  the  writ  of  habeas  corpus. 

The  District  of  Columbia,  the  seat  of  the  national  capital, 
was  fully  guarded  during  the  civil  war  by  the  national  forces. 
The  retention  of  the  city  of  Washington  by  the  Federal,  and 
the  preventing  its  capture  by  the  insurgent  armies  was  a  mat- 
ter of  the  greatest  importance.  It  was  fortified  and  garrisoned 
sufficiently  to  prevent  being  taken  by  coup  de  main,  while 
troops  were  kept  within  ready  call  to  defend  it  against  more 
regular  attacks.  Such  was  the  purely  military  situation.  The 
military  supervision  of  the  city  extended,  however,  far  beyond 
this.  There  were  many  interests  of  national  importance  to  be 
guarded  at  the  capital.  Besides  being  in  a  peculiarly  exposed 
position,  as  regards  liability  of  attack,  it  was  in  all  particulars 
the  center  of  federal  governmental  control.  All  the  great  de- 
partments were  there  located,  and  all  had  to  be  protected. 
From  there  the  affairs  of  the  nation  were  regulated.  But  aside 
from  this,  there  were  many  matters  to  be  looked  after  in  the 
city  which,  while  ordinarily  within  the  purview  of  local  gov- 
ernment, became,  under  the  conditions  surrounding  the  capital, 
of  national  moment.  There  foreign  representatives  lived, 
whom,  at  that  time,  it  was  particularly  desirable  to  guard  from 
the  semblance  of  molestation  ;  there  were  the  public  buildings, 
offices,  and  records  of  the  general  government,  destruction  of 
which  would  be  an  irreparable  loss  ;  there,  also,  emissaries  of 
the  enemy,  many  of  whom  lived  in  the  city,  were  plotting  for 
his  advantage. 

To  aid  the  local  civil  authorities  in  guarding  public  interests 
springing  out  of  these  and  other  kindred  matters,  a  provost- 
marshal's  staff,  assisted  by  a  military  police,  was  organized  soon 
after  the  war  began,  one  of  whose  important  duties  it  was  care- 
fully to  guard  political  prisoners  gathered  from  all  parts  of  the 
country,  and  who,  either  because  they  had  given  aid  and  com- 
fort to  the  enemy,  or  were  suspected  of  it,  had  become  subjects 
for  restraint.  In  March,  1862,  the  provost-marshal  of  the 
Army  of  the  Potomac  was  relieved  of  the  supervision  of  these 
duties  in  the  city  of  Washington  by  a  military  governor,  who 
was  assisted  by  a  proper  corps  of  subordinates  including  his 


384  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

own  provosts. '  This  military  governorship  over  the  District  of 
Columbia  continued  until  the  close  of  the  war. 

Of  course  the  various  proclamations  suspending  the  privilege 
of  the  writ  of  habeas  corpus  in  certain  enumerated  cases  hereto- 
fore cited  were  as  applicable  in  the  District  of  Columbia  as  else- 
where in  the  United  States.  Such  suspension,  however,  in  the 
instances  specified  did  not  operate  necessarily  to  institute  mar- 
tial law  which,  in  the  proper  acceptation  of  the  term,  was  not  at 
any  time  fully  established  over  the  District.  It  is  true  that  in 
many  respects  the  city  of  Washington  had  the  appearance  of 
being  under  martial  law.  Troops  were  to  be  found  in  all  parts 
of  the  District.  The  police  of  the  city  were  under  the  orders 
of  the  military  governor,  as  was  also  the  fire  department 
organized  into  a  brigade  for  better  military  control. 

The  civil  magistracy  of  the  District  exercised  their  vocations 
as  usual.  Civil  officers  were  chosen,  they  entered  upon  or  sur- 
rendered their  duties  as  in  times  of  peace.  To  this  extent  the 
military,  instead  of  supplanting  the  civil  authorities,  rendered 
it  possible  for  the  latter  to  exercise  their  functions.  Without 
the  former  the  latter  would  have  been  powerless  to  protect  and 
render  secure  either  life  or  property.  Yet  in  doing  this  the 
military  did  not  act  in  subordination  to  the  civil  power.  It 
strengthened  the  latter,  but  in  its  own  way.  The  principle 
upon  which  the  laws  were  administered  and  order  preserved 
throughout  the  District  at  this  time  appeared  to  be  this  :  as  to 
ordinary  matters  of  municipal  cognizance,  it  was  the  duty  and 
purpose  of  the  military  to  sustain  the  civil  authorities,  unless, 
indeed,  such  a  course  were  prejudicial  to  the  military  interests 
of  the  country,  which  were  treated  as  of  first  importance  ;  while, 
as  to  other  matters,  of  greater  or  less  military  consequence, 
and  which  existed  solely  because  the  war  was  being  waged, 
the  military  alone  had  control.  The  latter  branch  of  the  sub- 
ject was  perhaps  best  illustrated  by  the  hold  the  military  re- 
tained of  jurisdiction  of  military  offences,  without  regard  to 
the  civil  aspect  of  the  case,  as  in  the  trial,  conviction,  and  exe- 
cution of  the  conspirators  against  the  lives  of  the  President 
and  members  of  the  cabinet  in  1865,  although  at  the  time  the 
war  was  over,  and  civil  courts  were  open  for  the  trial  of  causes 
properly  presented. 

1.  G.  O.,  25,  A.  G.  O.,  Mch.  15,  1862  ;  S.  O.,  353,  par.  20,  A.  G.  O.,  Nov. 
19,  '62  ;  S.  O.,  449,  par.  38,  A.  G.  O.,  Dec.  16,  1864. 


CONGRESSIONAL   MARf  IAL   LAW  .  385 


CHAPTER  VII. 


CONGRESSIONAL   MARTIAL   LAW. 

In  treating  of  the  exercise  of  martial  law  under  Federal  au- 
thority, the  action  of  Congress  in  this  field  must  not  be  omitted. 
The  subject  has  been  adverted  to  in  the  introduction  to  this 
work,  where  the  constitutional  question  thence  arising  has  been 
suggested  and  briefly  considered.1 

The  United  States  Supreme  Court  sustained  the  legality  of 
martial  law  instituted  by  act  of  State  legislature.2  But  State 
legislatures  are  not  singular  in  this  exercise  of  power.  We 
have  witnessed  the  spectacle  of  the  national  legislature  placing 
under  martial  law  a  large  portion  of  United  States.  This  was 
immediately  following  the  civil  war.  The  insurgents  had  been 
reduced  to  subjection.  It  became  a  question  as  to  the  terms 
upon  which  the  conquered  States  should  be  restored  to  their 
places  in  the  Union.  The  question  was  of  momentous  import. 
The  Executive  and  the  Congress  were  not  agreed  upon  it.  The 
result  showed  how  nearly  omnipotent  in  this  country  the  latter 
is.  Virtually  for  purposes  of  reconstruction  it  exercised  com- 
mand of  the  arm}-. 

The  series  of  acts  by  which  this  was  accomplished  were 
passed  in  1867  over  the  Presidential  veto.  The  claim  here  set 
up  for  congressional  authority  was  in  effect  sustained  by  the 
Supreme  Court.3  The  first  of  the  acts  referred  to,4  after  declar- 
ing in  the  preamble  that  no  legal  State  governments  or  adequate 
protection  for  life  or  property  existed  in  the  rebel  States,  and 
further,  that  it  was  necessary  that  peace  and  good  order  should 
be  enforced  there  until  loyal  and  republican  governments 5  could 
legally  be  established,  proceeded  to  place  the  designated  States 
under  military  control.  Five  military  districts  were  created.  It 
was  made  the  duty  of  the  President  to  assign  to  the  command 

1.  Ante,  p.  13  et  seq.  2.  Luther  v.  Borden,  7  Howard,  1. 

3.   7  Wallace,  707-S  ;   13  Wallace,  646.  4.  March  2,  1867- 

c      fnnct       TT     Q       art     A     cpp     A      r1      T 


j.      /      wallas,     /w;        u,      ij     i*  cu 

5.  Const.,  U.  S.,  art.  4,  sec.  4, 


386  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

of  each  an  army  officer  not  under  the  rank  of  brigadier  general, 
and  to  detail  a  sufficient  military  force  to  enable  such  officer  to 
perform  his  duties  and  enforce  his  authority.  It  was  made 
his  duty  to  protect  life  and  property,  suppress  insurrection,  dis- 
order and  violence,  and  to  punish  or  cause  to  be  punished  all 
disturbers  of  the  public  peace  and  criminals  ;  and  to  this  end 
he  might  allow  local  civil  tribunals  to  take  jurisdiction,  or  he 
might  organize  military  commissions  or  tribunals  for  that  purr 
pose,  and  all  interference  under  color  of  State  authority  with 
this  exercise  of  military  authority  was  declared  null  and  void. 
All  persons  placed  under  military  arrest  by  virtue  of  the  act 
were  to  be  tried  without  unnecessary  delay  ;  no  cruel  or  unusual 
punishment  was  to  be  inflicted  ;  no  sentence  of  a  military  com- 
mission or  other  tribunal  authorized  by  the  act  affecting  life  or 
liberty,  to  be  executed  until  approved  by  the  district  commander, 
nor  sentence  of  death,  until  approved  by  the  President.  Pro- 
vision was  made  for  the  admission  of  the  States  affected  into 
the  full  communion  of  the  States  of  the  Union  upon  the  per- 
formance of  certain  conditions  precedent  ;  and  it  was  declared 
that  until  this  was  done  any  civil  government  which  might 
exist  in  any  one  of  them  should  be\  deemed  provisional  only, 
and  subject  to  be  modified,  controlled,  or  abolished  by  the 
supreme  authority  of  the  United  States. 

It  is  difficult  to  conceive  of  a  more  rigid  system  of  martial 
law  than  this.  The  districts  involved  were  subjected  absolutely 
to  military  control.  If  the  civil  jurisdiction  were  resorted  to  it 
was  matter  of  convenience  merely.  The  military  administrative 
arm  was  assisted  when  necessary  by  the  military  judicial  func- 
tion ;  and  the  two,  acting  together,  were  supreme  and  sufficient 
for  all  purposes  of  government.  As  an  example  of  legislative 
martial  law  this  act  is  a  model.  It  evinces  the  entire  confidence 
which  Congress  had  in  the  army.  The  President  strenuously 
objected  to  it  for  the  reason,  among  others,  that  it  was  a  legisla- 
tive usurpation  of  executive  authority  ;  but  having  passed  by 
the  constitutional  majority  over  his  veto,  he  was  bound  to  see 
it  carried  into  execution.  Its  effect  could  be  avoided  only  by 
a  decision  of  the  Supreme  Court  declaring  it  unconstitutional, 
a  tedious  process  at  best ;  besides,  when  actually  presented  for 
decision,    that  court   might  determine  the  question  the  other 


CONGRESSIONAL   MARTIAL   LAW.  387 

way.1  Under  the  plan  of  martial  rule  instituted  by  Congress 
there  were  but  two  subjects  of  Presidential  cognizance  :  first, 
the  appointment  of  the  military  commanders  ;  second,  cases  of 
death  penalty  when  adjudged  by  the  military  courts  authorized 
b)-  the  act. 

Notwithstanding  it  would  seem  that  there  was  no  room  for 
doubt  as  to  the  meaning  of  this  act,  controversies  upon  this  point 
soon  arose  which  led  to  still  more  stringent  legislative  meas- 
ures. The  attorney  general  when  called  upon  for  advice  as  to 
the  signification  of  the  act  gave  as  his  opinion  that  its  terms 
must  be  strictly  construed  ;  that  military  authority  under  it 
was  nothing  more  than  a  police  power,  and  did  not  include  the 
exercise  of  civil  government ;  that  it  did  not  include  the  ap- 
pointment of  civil  officers,  or  interference  with  civil  laws  and 
ordinances  or  the  course  of  civil  jurisprudence,  except  in  ex- 
treme criminal  cases,  and  by  this  theory  of  the  law  the  juris- 
diction of  the  military  tribunals  created  by  it  was  greatly  cir- 
cumscribed.2 

In  the  then  temper  of  Congress  there  could  be  but  one  result. 
Within  a  month  of  the  time  this  opinion — which,  in  effect, 
would  have  deprived  the  law  of  its  sterner  martial-law  feat- 
ures— was  promulgated,  a  supplemental  act  was  passed  ex- 
planatory of  the  former,  but  with  additional  and  yet  more 
rigid  provisions.3 

It  was  declared  to  be  the  true  intent  and  meaning  of  the  act 
of  March  2d,  1867,  that  the  governments  of  the  '  rebel  States  ' 
therein  mentioned  were  not  legal,  and  that  if  thereafter  they 
continued  they  were  to  be  subject  in  all  respects  to  the  mili- 
tary commanders  of  the  respective  districts  and  to  the  para- 
mount authority  of  Congress. 

How  this  construction  of  the  law  could  have  been  questioned 
by  one  who  gave  even  moderate  attention  to  the  language  of 
the  original  act,  it  is  difficult  to  comprehend.  It  is  no  doubt  a 
correct  principle  that  in  time  of  peace  statutes  authorizing  the 
exercise  of  military  power  over  civilians  are  to  be  construed 
strictly.  It  was  also  true  that  March  2d,  1867,  war  had  ceased 
to  be  flagrant,  and  it  was  therefore  technically  time  of  peace. 

1.  7  Wallace,  707-8  ;  13  Wallace,  646.  2.   12  Opinions,  182, 

June  12,  1867.  3.  Act,  July  19,  1867. 


388  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

But  it  was  also  true  that  the  civil  governments  in  the  late  in- 
surrectionary States  were  inimical  to  the  Union  ;  that  society 
there  was  in  a  dangerously  disordered  condition  ;  that  deep- 
seated  enmity  was  at  this  period  entertained  by  the  leading 
people  towards  important  principles  of  governmental  policy 
which  those  who  had  saved  the  Union  had  resolved  should  be 
incorporated  into  the  Constitution.  The  act  of  March  2d, 
1867,  was  to  be  construed  in  the  light  of  these  facts.  Techni- 
cally it  might  be  termed  '  time  of  peace; '  but  in  reality  it  was  far 
different,  as  that  phrase  is  generally  understood.  It  was  a  state 
of  latent  rebellion.  Had  the  President,  the  attorney  general, 
and  their  friends  been  able  to  take  this  view  of  the  case  and 
given  the  law  a  construction  in  consonance  with  its  intent,  they 
would  have  been  spared  the  disagreeable  experience  which  fol- 
lowed, during  which  they  were  compelled  to  drain  the  bitter 
cup  of  humiliation  to  its  dregs. 

By  section  two  of  the  supplemental  act '  the  general  com- 
manding the  Army  of  the  United  States  was  interposed  be- 
tween the  President  and  the  district  commanders  with  an  au- 
thority which  greatly  derogated  from  that  of  the  executive  as 
commander-in-chief.  And  to  meet  the  difficulty  arising  from 
the  attorney  general's  opinion,  that  the  act  of  March  2d  gave 
military  district  commanders  no  authority  in  matters  of  civil 
government,  they  were  now  in  express  terms  given  such  au- 
thority fully  and  completely,  not  as  formerly  under  the  direct 
supervision  of  the  President,  but  of  the  general  commanding 
the  army. 

The  general  of  the  army  was  invested  with  ever}-  authority 
to  appoint  and  remove  civil  officers  within  the  military  districts 
that  the  various  district  commanders  possessed.  All  previous 
acts  of  the  latter,  either  making  or  unmaking  civil  offices,  were 
confirmed.  No  district  commander  was  to  be  bound  in  his 
actions  by  any  opinion  of  any  civil  officer  of  the  United  States. 
The  object  of  this  was  evidently  to  provide  against  any  future 
opinion  of  the  attorney  general  adverse  to  the  general  purposes 
of  the  law  ;  and  it  was  declared  that  the  provisions  of  the  acts 
involved  should  receive  a  liberal  construction,  to  the  end  that 
the  intents  thereof  should  fully  and  perfectly  be  carried  out. 

1.  July  19,  1867. 


CONGRESSIONAL   MARTIAL   LAW.  389 

There  have  been  numerous  instances  in  the  history  of  the 
United  States  and  of  particular  States  of  the  declaration  of  mar- 
tial law.  But  for  completeness  of  design  and  efficacy  of  meas- 
ures for  carrying  it  into  successful  execution,  nothing  could 
surpass  these  acts  of  Congress.  They  established  a  military 
despotism.  The  insurrectionary  States  had  been  reduced  to 
subjection  by  the  sword  ;  they  were  to  be  ruled  by  the  sword 
until  they  were  willing  to  return  to  their  former  positions  upon 
such  terms  as  would  not  again,  from  the  same  causes  as  before, 
imperil  the  safety  of  the  Union.  Judging  from  these  acts  the 
authority  of  Congress  in  this  regard  would  seem  to  be  com- 
plete. It  was  attempted  in  vain  to  enjoin  the  carrying  this 
legislative  martial  law  into  execution.1  The  Supreme  Court 
refused  to  interfere.  The  power  and  duty  conferred  and  im- 
posed by  those  acts,  it  was  observed,  were  purely  executive  and 
political  in  their  nature  and  beyond  the  sphere  of  the  judicial 
cognizance.  Nor  was  this  system  of  government  wanting  in 
the  attributes  of  power,  firmness,  and,  considering  the  times, 
justice. 

"The  national  legislature,"  said  the  Supreme  Court  of 
Texas,  ' '  used  its  legitimate  powers  with  moderation  and  mag- 
nanimity, endeavoring  to  encourage  the  formation  of  republican 
governments  in  these  States,  and  bring  the  people  back  to  a 
due  appreciation  of  the  law  and  of  the  liberty  which  is  secured 
to  the  free  enjoyment  of  every  citizen  under  the  Constitution."  a 
To  the  same  effect  was  Texas  v.  White,  decided  by  the  Supreme 
Court  of  the  United  States.3  It  was  there  held  that  while  war 
was  flagrant  it  was  within  the  power  of  the  President  to  insti- 
tute temporary  [military]  governments  over  the  insurgent  ter- 
ritory. But,  rebellion  being  suppressed,  and  the  question  being 
upon  what  conditions  the  conquered  territory  was  again  to  be 
admitted  into  the  Union,  the  duty  devolved  upon  Congress  to 
determine  that  question,  which  it  had  done,  in  a  constitutional 
manner.  This  position  was  affirmed  in  various  decisions. 
"  From  the  close  of  the  rebellion,"  said  the  same  court  in  White 
v.  Hart,  ' '  until  Georgia  was  restored  to  her  normal  relations 
and  functions  in  the  Union,  she  was  governed  under  the  laws  of 
the  United  States  known  as  the  reconstruction  acts.     The  State 

1.  4  Wallace,  475  ;  6  Wallace,  50.      2.  33  Texas,  570.      3.  7  Wallace,  701. 


390  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

having  complied  with  the  terms  of  these  acts,  was  declared  by 
Congress  entitled  to  representation  in  that  body.  The  action  of 
Congress  upon  the  subject  can  not  be  inquired  into.  The  case 
is  one  in  which  the  judicial  is  bound  to  follow  the  action  of  the 
political  department  of  the  government  and  is  concluded  by  it. "  l 

It  was  doubtless  true  that  the  condition  of  public  feeling  in 
the  late  insurrectionary  States,  which  led  to  the  enactment  of 
the  laws  just  cited,  was  not  such  as  ordinarily  would  cause 
a  nice  regard  to  be  paid  to  the  convenience  and  prejudices  of 
the  people  thus  subjected  to  martial  law.  Yet  we  see  on  every 
hand  military  commanders  making  use  of  the  civil  institutions 
of  their  respective  districts  to  the  utmost  that  regard  for  the 
objects  of  these  laws  would  permit.  As  observed  by  Chief 
Justice  Chase,  the  military  existed  only  to  prevent  illegal  vio- 
lence to  persons  and  property,  and  facilitate  the  restoration  of 
the  States,  and  this  fact  district  commanders  constantly  sought 
to  impress  upon  the  people  interested.  This  appears  from  their 
orders,  as,  for  instance,  that  the  military  courts  convened  under 
these  laws  were  to  be  "  governed  by  the  rules  of  evidence  pre- 
scribed by  the  laws  of  the  State  in  which  the  case  was  tried  ;  "  : 
that  it  was  the  purpose  of  the  commanding  general  "  not  to  in- 
terfere with  the  operation  of  the  State  laws,  as  administered  by 
civil  tribunals,  except  where  the  remedies  thereby  afforded  are 
inadequate  to  secure  individuals  substantial  justice;"3  that 
' '  the  trial  and  punishment  of  criminals  was  to  be  left  to  the 
civil  authorities,  so  long. as  the  said  authorities  are  energetic, 
active,  and  do  justice  to  the  rights  of  persons  and  property  with- 
out distinction  of  race  or  color. ' '  * 

We  have  not  far  to  go  in  seeking  for  the  reason  of  this  uni- 
versal deference  to  civil  institutions  on  the  part  of  military 
officers.  It  is  a  part  of  their  existence.  They  are  educated  to 
regard  the  civil  law  with  the  greatest  respect,  and  are  solicitous 
to  avoid  being  brought  under  its  censure.  Indeed,  the  general 
principle  that  the  civil  is  superior  to  the  military  jurisdiction  is 
so  firmly  implanted  in  their  minds  that  they  never  question, 
save  in  extreme  cases  which  their  good  sense  rejects  at  first 
sight  as  improper,  the  acts  of  agents  of  civil  government.     It 

i.   13  Wallace,  646.  2.  Second  District,  G.  O.  18,  1868,  (Wintlirop's 

Mil.  Law,  vol.  2,  p.  91,  notes.)  3.  First  District,  G-  O.  24,  1868,  Ibid. 

4.  Third  District,  G.  O.  10,  1868,  Ibid. 


CONGRESSIONAL    MARTIAL    LAW.  391 

easily  can  be  imagined  that  a  class  of  public  officials  thus  im- 
bued not  only  with  a  profound  regard  for  civil  administration, 
but  a  desire  to  avoid  if  possible  having  anything  to  do  with  it, 
would  not  seek  even  a  temporary  extension  of  their  own  au- 
thority over  it.  It  results  that  military  officers  are  as  a  rule 
not  the  first  to  suggest  such  a  measure.  When,  however,  the 
necessity  arises  they  generally  do  not  shrink  from  the  responsi- 
bility thereby  imposed,  conscious  that  they  are  actuated  by 
love  of  good  order  and  not  by  lust  of  power. 

Martial  law  either  with  or  without  formal  declaration  having 
become  an  established  fact,  how  reluctantly  soever  this  may  be, 
it  is  natural  that  the  military  commander,  now  supreme,  should 
avail  himself  of  ordinary  governmental  instrumentalities  when 
and  to  the  extent  that  this  can  be  done  consistently  with  the 
objects  he  has  in  view.  Successfully  to  govern  a  community 
even  in  times  of  peace  is  not  an  easy  task.  To  the  casual  ob- 
server the  machinery  of  municipal  affairs  may  seem  to  run 
itself,  but  closer  examination  will  evince  that  when  this  is  so, 
it  is  due,  first,  to  a  well-digested  system  of  laws,  and  second, 
to  unceasing  vigilance  on  the  part  of  those  entrusted  with  their 
execution.  But  martial  law  does  not  exist  in  ordinary  times  of 
peace.  That  it  exists  at  all  is  evidence  that  society  is  disturbed 
to  a  degree  beyond  the  power  of  civil  government  to  manage. 
Good  government  is  more  difficult  to  maintain  at  such  times 
than  at  any  other.  The  military  is  made  the  dominating 
power  because  of  this  weakness  of  the  civil  power.  By  virtue 
of  their  decree,  and  according  to  their  plan,  order  is  enforced 
and  individuals  rendered  secure  in  persons  and  property. 

But  this  exercise  of  military  authority  may  not,  operating 
alone,  fully  meet  the  ends  for  which  it  is  invoked.  Under  it 
many  subordinate  authorities  and  instrumentalities  find  their 
spheres  of  action  extending  out  into  the  minute  details  of 
private  and  municipal  affairs.  A  vast  mass  of  matters  inti- 
mately affecting  the  happiness  of  the  governed,  their  liberties 
and  property  rights  must  hourly  be  cared  for  by  duly  con- 
stituted officers,  or  great  suffering,  inextricable  confusion,  and 
injustice  to  individuals  will  result.  Property  is  entailed,  mar- 
riages entered  into,  contracts  made,  and  many  other  every-day 
domestic  concerns  must  regularly  and  systematically  pursue 
their  accustomed  course,  or  society  receives  a  shock  from  which 


392  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

it  but  slowly  and  painfully  recovers.  It  is  not  the  policy  of  mili- 
tary commanders  to  bring  about  such  a  condition  of  affairs. 
On  the  contrary,  it  is  matter  of  deep  solicitude  with  them  to 
prevent  it.  The  attainment  of  this  end  is  most  easily  brought 
about  by  the  civil  judicature,  to  the  extent  absolutely  necessary, 
acting  under  military  control.  Hence  it  was  that  on  both  the 
Union  and  Confederate  sides  during  the  civil  war,  when  mar- 
tial law  was  declared  it  was  generally  stipulated  that  this  was 
not  to  be  considered  as  disturbing  the  usual  order  of  things 
except  in  so  far  as  imperatively  necessary  ;  while  often  supple- 
mentary orders  were  issued  by  those  upon  whom  the  duty  of 
enforcing  martial  law  devolved,  calling  the  civil  and  municipal 
administration  to  their  assistance. 


MARTIAL   LAW    IN   STATES    AND    TERRITORIES.  393 


CHAPTER   VIII. 


MARTIAL    LAW    IN   STATES    AND   TERRITORIES. 

We  have  seen  that  in  carrying  into  execution  those  laws 
which  provide  for  protecting  the  National  Government  against 
both  invasion  and  insurrection,  and  maintaining  Federal  su- 
premacy, the  President  may  act  within  the  States  independently 
of  State  authorities  and  even  against  their  wishes.  There  have 
been  numerous  instances  of  this  exercise  of  power  in  the  history 
of  the  government.  Under  those  circumstances  if  measures 
proceed  to  the  extremity  of  martial  law  the  Federal  government 
acts  without  necessarily  inquiring  how  the  State  is  affected. 

There  is,  however,  another  case  when  the  interposition  of 
Federal  power  is  authorized  by  the  Constitution  and  wherein 
the  State  acts  a  more  determining  part.  Article  4,  section  4 
provides  that  ' '  the  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and  shall  pro- 
tect each  of  them  against  invasion  and,  on  application  of  the 
legislature  or  of  the  executive  (when  the  legislature  can  not  be 
convened),  against  domestic  violence." 

Regarding  this  duty  of  guaranteeing  governments  republican 
in  form  but  little  need  be  said.  A  question  might  arise  as  to 
what  constituted  such  government.  If  this  happened  it  would 
be  necessary  for  some  controlling  power  to  decide,  and  unques- 
tionably it  would  be  Congress.  The  Supreme  Court  of  the 
United  States  so  stated  in  Luther  v.  Borden,  and  the  reconstruc- 
tion acts  of  March  2  and  July  19,  1867,  proceeded  upon  this 
principle.1  If  the  instituting  martial  law  under  these  circum- 
stances became  necessary,  it  would  be  wholly  a  matter  of  Fed- 
eral cognizance. 

It  is  conceived  that  the  same  would  be  true  when  the  Federal 
authority  proceeded  to  the  second  duty  here  indicated,  to  protect 
a  State  against  invasion.  The  duty  in  both  these  instances  is 
mandatory.     The  Federal   government   when   organized   took 

1.  Texas  v.  White,  7  Wallace,  700. 


394  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

upon  itself  the  obligations  imposed  in  these  provisions  of  the 
fundamental  law  ;  and  in  acquitting  itself  thereof,  it  would 
move  in  the  manner  most  expeditious,  effective,  and  satisfactory 
to  itself.  All  measures  taken,  including  if  need  be  martial  law, 
would  be  Federal  in  nature,  and  the  United  States  would  take 
and  maintain  the  initiative. 

The  case,  however,  is  different  regarding  the  remaining  guar- 
antee clause.  This  provides  against  clanger  to  the  States,  not 
from  without  but  within.  If  the  legislature  be  in  session  the 
application  should  come  from  it.  That  is  not  the  language  of 
the  Constitution,  but  is  its  meaning.  When  not  in  session  and 
can  not  be  convened,  the  State  executive  makes  application  to 
the  President  to  have  made  effectual  the  constitutional  guaran- 
tee against  domestic  violence. 

By  act  of  February  28,  1795,  Congress  vested  in  the  President 
power  to  meet  emergencies  of  this  character.  Should  there  be 
a  question  as  to  which  is  the  legislature  and  who  the  executive, 
the  President  must  determine  it.1 

Many  if  not  all  of  the  United  States  statutes  passed  since 
then,  providing  for  the  employment  of  regular  troops  or  the 
militia  or  both  for  national  defence  and  maintaining  the  su- 
premacy of  Federal  laws,  at  the  same  time  equally  guard  all 
the  States  and  their  laws.  Thus  means  are  fully  provided  for 
meeting  the  national  obligations  imposed  by  the  clauses  of  the 
Constitution  mentioned.2 

The  act  of  February  28,  1795,  does  not  render  it  imperative 
that  the  President  call  out  the  militia  on  application  of  State 
authorities.  It  only  states  that  it  may  be  lawful  for  him  to  do 
so.  He  exercises  his  discretion  when  the  exigency  arises.  In 
the  case  of  Dorr's  rebellion  he  declined  to  interfere,3  and  the 
State  proceeded  unaided  to  maintain  its  authority.  In  nearly 
all  cases,  however,  the  President  has  promptly  responded  with 
Federal  aid. 

If  it  be  a  case  of  insurrection,  and  the  President  deems  it  a 
fitting  occasion  to  interpose,  the  statute  provides  that  he  shall 
forthwith  by  proclamation  command  the  insurgents  to  disperse 
and  retire  peaceably  to  their  abodes  within  a  limited  time.4 

1.  Chapter  36;  7  Howard,  42,  43.  2.  Art.  1.  sec.  8,  cl.  14  ;  Art.  4,  sec.  4. 
3.  7  Howard,  41.  4.  Section  5300,  R.  S. 


MARTIAL    LAW    IN   STATES    AND   TERRITORIES.  395 

It  now  becomes  necessary,  the  troops  having  entered  the 
State,  to  determine  under  whose  authority  they  shall  act.  This 
question  the  President  decides.  He  is  proceeding,  pursuant  to 
law,  to  render  effective  one  of  the  guarantees  which  the  consti- 
tution has  given  each  State  from  the  United  States.  The  law 
prescribes  that  this  shall  be  done  by  military  force.  But  it  does 
not  enter  into  details  as  to  how  this  force  shall  be  used.  This 
is  left  to  the  President.  The  responsibility  is  his,  and  he  is 
given  a  discretion  as  to  the  manner  in  which  he  shall  use  the 
means  supplied  to  him  by  law  to  meet  the  Federal  obligation. 

A  vState  under  these  circumstances  will  seldom  be  disposed 
to  dictate  how  the  assistance  called  for  is  to  be  used.  Having 
exhausted  her  own  coercive  resources,  she  has  turned  to  the 
stronger  power  provided  by  the  Constitution  to  rescue  her  from 
the  violence  of  her  own  members.  The  power  invoked  must 
direct  its  own  energies.  It  can  not  abdicate  its  functions  and 
transfer  its  duties  to  the  inferior  power.  Consequently,  whether 
the  President  either  commands  in  person,  as  President  Wash- 
ington for  a  time  did  in  the  Pennsylvania  rebellion  of  1794,  or 
devolve  this  duty  on  a  subordinate,  he  must  and  will  reserve 
the  right  to  resume  the  reins  of  supreme  authority  should  the 
occasion  require  it. 

It  follows  that  the  President  might  proceed  to  protect  the 
State  against  domestic  violence,  either  by  acting  independently 
of  State  authorities  or  in  co-operation  with  them ;  or  for  this  occa- 
sion the  troops  might,  it  is  submitted,  be  placed  subordinate  to 
and  at  the  disposal  of  the  chief  executive  of  the  State.  They 
may  be  used  either  to  sustain  or  supplant  the  civil  authorities, 
depending  upon  the  President's  view  of  the  exigency.  But 
whatever  plan  be  adopted,  the  President  would  necessarily  have 
the  right  to  modify  or  abandon  it  if  the  public  interests  and  the 
object  to  be  attained  would  thereby  better  be  subserved.  When 
the  time  for  the  interposition  of  Federal  authority  arises,  the 
President,  not  the  State  officers,  is  charged  with  the  duty  of 
seeing  that  it  is  wisely  and  efficaciously  exercised. 

Yet  there  is  a  limit  to  the  authority  which  may  be  exerted  to 
protect  a  State  against  domestic  violence.  This  must  be  done 
in  such  a  manner  as  not  to  defeat  the  object  of  that  other  guar- 
antee in  the  same  clause,  and  which  engages  the  United  States 
to  ensure  each  State  a  republican  form  of  government.     The 


396  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

military  power  invoked  must  not  erect  a  permanent  govern- 
ment non-republiean  in  form.  Permanently  to  secure  one  repub- 
lican in  form,  however,  it  may  be  necessary  temporarily  to 
erect  a  complete  government  of  the  sword,  or  such  modification 
of  this  as  the  emergency,  in  the  judgment  of  the  officer  entrusted 
with  the  management  of  affairs,  calls  for.  That  martial  law 
may  be  a  proper  measure  under  these  circumstances,  the  Su- 
preme Court  of  the  United  States  in  Luther  v.  Borden  explicitly 
declared.  The  domestic  violence  may  vary  in  its  proportions 
from  a  local  riot  or  insurrection  to  rebellion  which  strikes  at  the 
supremacy  of  State  government  itself.  The  assistance  ren- 
dered by  the  President  will  correspond  to  the  occasion,  from  a 
few  hundred  to  perhaps  many  thousand  troops.  The  district 
occupied  may  vary  from  one  or  two  points  to  extensive  portions 
of  State  territory.  The  measures  of  administration  and  control 
necessary  to  adopt  in  every  instance  will  depend  upon  its  own 
circumstances.  The  President  or  the  officer  to  whom  he  con- 
fides the  direction  of  affairs  will  decide  upon  this,  and  if  mar- 
tial law  be  a  necessary  and  proper  measure,  he  will  institute  it. 
His  is  both  the  duty  and  the  responsibility. 

The  duty  and  authority  of  the  President,  when  either  the 
execution  of  Federal  laws  are  obstructed,  Federal  territory  in- 
vaded, or  the  States  call  for  assistance,  to  enforce  martial  law  if 
in  his  judgment  the  exigency  requires  it,  seems  to  be  complete. 
In  this  regard  the  Executive  is  invested  with  all  power  neces- 
sary to  vindicate  the  laws  and  preserve  unimpaired  both  the 
integrity  of  civil  institutions  and  the  national  domain. 

There  is  no  reason  why  the  governor  of  a  State,  who  is  the 
commander-in-chief  of  its  armed  forces,  should  not  have  the 
power,  equally  with  the  President,  locally  to  enforce  martial 
law  should  occasion  justify  it.  If  the  legislature  be  in  ses- 
sion or  can  be  convened  in  time  to  meet  the  emergency,  he 
might  with  propriety  await  its  co-operation.  On  the  other 
hand,  the  state  of  facts  which  are  held  to  justify  this  law  gen- 
erally are  of  such  a  nature  as  to  demand  prompt  action.  Delay 
may  be  fatal  to  the  maintenance  of  good  order.  Such  in  fact 
generally  will  be  the  case.  And  even  if  it  be  practicable  to 
convene  the  legislature  there  may  be  sufficient  reasons  why  the 
governor,  in  the  exercise  of  a  wise  discretion,  may  not  deem  it  nec- 
essary.   There  have,  however,  been  few  instances  of  the  exercise 


MARTIAL   LAW   IN   STATES   AND   TERRITORIES.  397 

of  martial  law  by  State  authority.  That  of  Rhode  Island  has  al- 
ready been  mentioned.  The  exercise  of  martial  law  in  the  min- 
ing district  of  Idaho  in  July,  1892,  was  an  occurrence  of  recent 
date.  An  armed  mob  had  taken  possession  of  the  mines  with  the 
avowed  purpose  of  preventing  their  being  worked  by  persons 
obnoxious  to  the  rioters.  The  latter  were  well  armed  and  pro- 
vided with  dynamite  and  other liigh  explosives  for  their  meas- 
ures of  threatened  and  actual  destruction.  The  disaffected  dis- 
trict was  a  mountainous,  isolated  region.  A  reign  of  terror 
soon  was  inaugurated  which  swept  away  or  rendered  powerless 
the  local  civil  magistracy.  Circumstances  at  once  reduced  the 
situation  to  one  wherein  the  military  alone  could  preserve  order 
and  re-establish  lawful  authority.  But  the  State  militia  were 
few  in  numbers  and,  without  support,  utterly  inadequate  for 
this  purpose.  The  case  was,  therefore,  that  contemplated  by 
the  Constitution,  and  the  governor,  as  the  legislature  was 
neither  in  session  nor  could  be  convened,  applied  to  the  Presi- 
dent for  the  Federal  protection  to  the  State  guaranteed  by  that 
instrument. 

Meantime,  and  as  if  to  leave  no  means  at  his  command  for 
sustaining  civil  authority  untried,  the  governor  issued  a  proc- 
lamation declaring  the  county  which  was  the  scene  of  disturb- 
ance to  be  in  a  state  of  insurrection  and  rebellion.  It  was 
preliminary  to  proceeding  by  summary  processes  so  soon  as  the 
military  should  be  upon  the  scene  of  action.  It  authorized  the 
adoption  of  martial  law  or  other  measures  which  the  exigency 
of  the  case  rendered  necessary.  The  President  promptly  re- 
sponded to  the  governor's  call  for  regular  troops.  It  is  partic- 
ularly to  be  noticed  that  the  object  for  which  they  were  sent, 
as  indicated  by  the  President  himself,  was,  in  the  terms  of  the 
governor's  request,  to  co-operate  with  the  civil  authorities  in 
the  preservation  of  the  peace  and  protecting  life  and  property. 
Fortunately  for  all  concerned,  a  prudent  and  able  regular  com- 
mander was  near  at  hand.  To  him  was  entrusted  the  manage- 
ment of  military  matters,  with  orders  to  report  to  the  governor. 
The  appearance  of  the  military  upon  the  scene  was  the  signal 
for  the  rioting  miners  to  disperse  to  their  various  camps.  But 
here,  as  has  been  so  often  the  case  elsewhere,  it  was  found  that 
the  local  authorities,  either  from  sympathy  with  the  rioters  or 
through  fear  of  their  vengeance,  were  incapable  properly  of  per- 


39&  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

forming  their  functions.  They  could  not  be  trusted  to  proceed 
promptly  against  the  law-breakers  to  bring  them  to  justice  and 
restore  confidence  to  the  community.  The  civil  magistracy 
being  powerless  either  to  protect  society  or  to  maintain  govern- 
ment, martial  law,  without  formal  proclamation  other  than  that 
of  the  governor's  mentioned,  now  found  its  fitting  field  of  action. 
Ivocal  civil  officers  who  had  been  duly  elected  or  appointed 
under  the  laws  of  the  State  were  in  some  instances  removed, 
and  others  appointed  by  the  governor's  representative  on  the 
spot,  who  was  given  direction  of  martial-law  measures.  United 
States  as  well  as  State  marshals  were  there  to  make  arrests 
with  the  assistance  of  the  troops,  without  which  they  could 
have  done  nothing.  Some  hundreds  of  the  malcontents,  charged 
with  murder,  robbery,  plunder,  and  criminal  destruction  of  prop- 
erty, were  thus  taken  into  the  custody  of  the  civil  authorities, 
and  escorted  by  the  troops,  pursuant  to  the  President's  express 
orders,  to  the  State  capital  for  trial. 

It  will  thus  be  seen  that  in  the  exercise  of  martial  law  upon 
this  occcasion  the  military  acted  in  co-operation  with  yet  a 

Note. — The  order  of  events  in  the  Coeur  d'Alene  district  of  Idaho  was 
as  follows  :  On  July  13  the  governor  declared  Shoshone  county,  the  seat 
of  disturbance,  to  be  in  a  state  of  insurrection  and  rebellion.  On  the  15th 
the  President  issued  his  proclamation  commanding  all  persons  engaged 
therein  peaceably  to  return  to  their  homes.  Meanwhile  both  Federal  and 
State  troops  had  been  moved  to  the  scene  of  action.  The  commander  of 
the  latter  represented  the  governor  in  the  field.  He  exercised  martial - 
law  powers  fully,  removing  the  sheriff  and  appointing  another  in  his 
stead.  The  appointee  was  instructed  to  take  possession  of  all  books  and 
property  appertaining  to  the  office,  and  perform  the  duties  thereof  strictly 
according  to  law,  except  that  he  was  "not  to  interfere  in  any  way  with 
the  administration  of  martial  law  as  conducted  by  the  military  authorities." 
Mills  in  the  mining  region  were  shut  down,  and  other  martial-law  meas- 
ures taken  by  the  State  military  commander.  No  use  of  words  could  re- 
lieve the  situation  from  one  of  the  rule  of  martial  law  to  the  fullest  extent. 
No  formal  proclamation  instituting  it  was  issued,  but  the  status  became 
that  from  its  incidents  as  here  narrated.  This  was  eminently  proper. 
The  lawful  declaration  that  the  district  was  in  insurrection  and  rebellion 
authorized  the  usual  measures  of  war  against  the  rebels  and  the  adoption 
of  whatever  means  contributed  to  the  speedy  restoration  of  order.  The 
exercise  of  martial-law  authority  was  by  State,  not  Federal  authorities. 
The  latter  acted  simply  to  uphold  the  former  by  their  presence.  The  in- 
fluence they  exerted  was  moral  rather  than  physical. 


MARTIAL   LAW    IN   STATES   AND   TERRITORIES.  399 

part  superior  to  the  civil  power.  There  were  no  antagonisms  ; 
no  strifes  for  precedence  between  these  agents  of  the  law.  All 
worked  together  harmoniously  for  the  common  end,  the  restor- 
ation of  law  and  order  in  the  community,  giving  security  to 
property,  the  bringing  criminals  to  justice. 

The  Confederate  State  authorities  did  not  hesitate  to  exercise 
similar  authority.  On  numerous  occasions  the  governors  ap- 
pealed to  the  Confederate  President  to  exercise  within  their  re- 
spective jurisdictions  the  martial-law  power;  and  when  this 
was  not  done,  as  sometimes  was  the  case,  they  enforced  it  them- 
selves. When,  in  the  fall  of  1862,  the  orders  of  Confederate 
generals  establishing  martial  law  were  rescinded,  except  where 
expressly  authorized  by  the  President,  the  governor  of  Texas 
expressed  his  regret,  and  at  his  solicitation  the  general  com- 
manding there  continued  to  exercise  that  law  over  a  portion  of 
his  territorial  command,  notwithstanding  his  orders  to  the  con- 
trary.1 

South  Carolina,  the  front  of  the  rebellion,  was  not  to  be  left 
behind  in  sealing  her  devotion  in  this  as  mother  respects  to  the 
cause  she  had  espoused.  An  ordinance  was  adopted  by  a  State 
convention  of  her  people  on  the  7th  day  of  January,  1862,  em- 
powering the  governor  and  executive  council,  acting  together, 
to  declare  martial  law  to  such  extent,  in  such  places  and  at 
such  times  as  might  be  required  by  the  exigencies  of  public 
affairs.  In  pursuance  of  this  authority,  the  governor,  May  1, 
1862,  proclaimed  martial  law  over  the  city  of  Charleston  and 
the  country  for  ten  miles  around,  as  well  as  the  adjacent 
islands.  This  proclamation,  curiously  though  perhaps  so  far 
as  its  promulgator  was  concerned  unconsciously,  illustrates  the 
hallucinations  of  a  devotee  to  the  fatal  doctrine,  so  pleasing  to 
local  pride,  and  until  then  so  prevalent  in  South  Carolina,  that 
the  State  and  not  the  Nation  is  supreme.2  Having  declared 
martial  law,  Governor  Pickins  proceeded  solemnly  to  invest  the 
Confederate  general  commanding  the  department  with  au- 
thority to  enforce  that  law  !  and  with  further  authority  to  im- 
press, in  the  country  south  of  the  Santee  river,  labor  of  all 
kinds  for  the  public  service  in  like  manner  as  if  martial  law 
were  there  declared  !     Of  course,  the  principle  that  the   State 

1.   R.  R.  S.,  1,  v.  15,  p.  829.  2.   R.  R.  S.,  1,  vol.  14,  pp.  489,  491. 


400  MILITARY    GOVERNMENT   AND    MARTlAl,    EAW. 

was  the  source  whence  the  authority  of  Confederate  officers 
flowed  as  here  assumed,  was  a  mere  figment  of  a  disordered 
states  rights'  mind,  and  wholly  untenable  ;  the  necessities  of 
war  soon  swept  to  one  side  and  strangled  the  heresy.  The 
Confederate  general  could  not  and  did  not  act  under  the  pre- 
tended authority  conferred  by  the  governor.  On  the  same  day 
that  the  latter  proclaimed  martial  law  the  Confederate  Presi- 
dent issued  a  similar  proclamation  embracing  the  same  and 
much  more  territory — the  whole  country  between  the  Santee 
and  South  Edisto  rivers  in  South  Carolina — -and  it  was  duly 
maintained  until  August  19th,  1862,  when  the  orders  instituting 
martial  law  were  rescinded.1 

In  Georgia,  the  governor,  while  not  proclaiming,  expressed 
himself  as  willing  that  martial  law  be  extended  by  Confederate 
authority  over  those  portions  of  the  State  the  inhabitants  of 
which,  as  at  Augusta,  were  calling  for  its  exercise.2  In  Louisi- 
ana we  are  presented  with  the  spectacle  of  the  governor  solicit- 
ing the  Confederate  President  to  declare  martial  law  in  certain 
parishes,  and  expressing  his  deep  regrets  that  it  was  not  done, 
as  thereby  "much,  very  much  serious  trouble  would  have  been 
avoided." 

There  have  been  few  examples  of  the  enforcement  of  martial 
law  in  the  Territories  of  the  United  States.  The  Territory  of 
Washington  furnishes  two  instances.  The  first  was  in  1856, 
when  the  governor,  himself  an  able  and  distinguished  soldier, 
proclaimed  and  enforced  it.  The  question  of  the  governor's 
authority  on  this  occasion  having  been  submitted  to  the  at- 
torney general  for  an  opinion,  that  officer  after  exhaustive  ex- 
amining the  subject  arrived  at  the  conclusion  that  such  au- 
thority did  not  exist.3  The  reasoning  was  to  the  effect  that 
the  Territorial  governor,  being  an  appointee  of  the  President, 
had  only  those  powers  which  statutes,  strictly  construed,  gave 
him  ;  and  although  occasions  might  arise,  in  a  Territory  as  in  a 
State,  when  the  enforcement  of  martial  law  would  be  neces- 
sary, the  legislature  alone  could  seemingly  authorize  the  exer- 
cise within  a  Territory  of  the  martial-law  power. 

It  is  safe  to  assume  that  this  reasoning  will  not  be  deemed 
conclusive.     In  fact  it  was  disregarded,  with  the  apparent  ap- 

1.  Ibid.,  599.       2.  R.  R.  S.,  1,  vol.  15,  p.  492.       3.  S  Opinions,  365  tt  seq. 


MARTIAL   LAW    IN   STATES    AND   TERRITORIES.  4OI 

proval  of  the  President,  by  a  subsequent  governor  of  the  same 
Territory.1  In  the  years  1885-6  there  were  frequent  illegal 
uprisings  of  the  lower  classes  in  the  western  portion  of  that 
Territory  against  the  Chinese.  These  gradually  grew  into 
riotous  assemblages  in  defiance  of  civil  authority,  the  centers 
of  disturbance  being  in  Tacoma  and  Seattle.  The  rioters  were 
armed  and  defiant.  The  local  militia  were  called  out  in  aid  of 
the  officers  of  the  law,  supported  by  the  posse  comitahis.  The 
proclamation  of  the  governor  warned  the  mob  to  disperse.  It 
was  wholly  disregarded.  In  a  conflict  between  the  rioters — 
who  were  the  worst  characters  from  that  part  of  the  United 
States — and  the  State  authorities  one  rioter  was  killed  and 
several  were  wounded.'  The  governor  issued  a  second  procla- 
mation declaring  that  an  insurrection  existed  by  which  life, 
liberty,  and  property  were  endangered  ;  that  the  civil  power 
was  unable  to  suppress  the  disorder,  and  placing  the  city  of 
Seattle  under  martial  law.  Before  taking  this  step  the  chief 
justice  and  the  United  States  attorney  of  the  Territory  were 
consulted,  both  of  whom  earnestly  counselled  the  measure. 

The  President  of  the  United  States,  far  from  finding  fault 
with  the  governor,  promptly  seconded  his  efforts  to  maintain 
the  law  at  all  hazards.  He  immediately  issued  a  proclamation 
stating  that  a  case  had  arisen  which  justified  and  required, 
under  the  Constitution  and  laws  of  the  United  States,  the  em- 
ployment of  military  force  to  suppress  domestic  violence  and 
enforce  the  faithful  execution  of  the  laws,  and  directed  General 
Gibbon,  commanding  the  United  States  forces  in  that  quarter, 
to  move  with  regular  troops  to  the  assistance  of  the  governor. 
These  energetic  measures  had  the  desired  effect.  Quiet  was 
soon  restored.  The  presence  of  the  regular  troops  gave  con- 
fidence to  the  business  and  law-abiding  members  of  the  com- 
munity. After  having  been  in  force  two  weeks  the  procla- 
mation of  martial  law  was  revoked.  After  the  arrival  of  the 
regulars — and  until  February  22d,  1886 — martial  law  was  en- 
forced. General  Gibbon  had  complete  military  control.  This 
was  with  the  acquiescence  of  the  governor  and  at  his  request. 

1.  Report  of  Gov.  of  Wash.  Ter.  to  Sec.  of  Interior,  1886. 

2.  This  was  a  state  of  war  under  English  authorities  ;  see  Regina  v. 
Frost,  9  Carriugtou  and  Payne's  Reports,  129. 


402  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

For  his  course  in  this  trying  emergency,  Governor  Squire 
had  the  approval  of  all  good  citizens.  The  bar  of  Seattle 
passed  resolutions  declaring  that  the  exigencies  of  the  occa- 
sion fully  justified  martial  law,  and  pledging  the  governor  their 
support.  A  feeling  of  relief  pervaded  the  community  when 
the  strong  military  hand  was  felt  at  the  helm,  and  of  grateful- 
ness to  those  who  had  saved  the  people  from  anarchy  and  the 
rule  of  a  cowardly  mob.  To  render  martial  law  effective  pro- 
vost marshals  were  duly  appointed  ;  the  privilege  of  the  writ  of 
habeas  corpus  was  suspended  as  to  rioters,  while,  in  respect  to 
ordinary  municipal  affairs,  the  military  in  no  wise  interfered. 

The  remaining  conspicuous  instance  of  martial  law  in  a  Ter- 
ritory was  that  of  Arizona  in  1862.  When  the  rebellion  of 
1 86 1  broke  out  the  insurrectionary  government  promptly  put 
in  execution  a  scheme  of  conquest  of  the  southwest  Territories 
of  the  Union.  Both  New  Mexico  and  Arizona  were  invaded, 
and  the  latter  for  some  time  held  by  the  rebel  military  forces. 
Early  in  1862  a  relieving  column  of  national  troops  from  Cali- 
fornia reached  the  Territorial  capital  where,  June  8th,  1862,  its 
commander,  Colonel  Carleton,  issued  a  proclamation  establish- 
ing martial  law  throughout  the  Territory. 

Note.— This  was  worded  as  follows  :  "In  the  present  chaotic  state  in 
which  Arizona  is  found  to  be,  with  no  civil  officers  to  administer  the  laws — 
indeed,  with  an  utter  absence  of  all  civil  authority — and  with  no  security 
of  life  or  property  within  its  borders,  it  becomes  the  duty  of  the  under- 
signed to  represent  the  authority  of  the  United  States  over  the  people  of 
Arizona  as  well  as  over  all  those  who  compose  or  are  connected  with  the 
column  from  California.  Thus,  by  virtue  of  his  office  as  military  com- 
mander of  the  forces  now  here,  and  to  meet  the  fact  that  wherever  within 
our  boundaries  our  colors  fly  there  the  sovereign  power  of  our  country 
must  at  once  be  acknowledged,  and  law  and  onler  at  once  prevail,  the 
undersigned,  as  a  military  governor,  assumes  control  of  this  territory 
until  such  time  as  the  President  of  the  United  States  shall  otherwise 
direct.  Thus  also  it  is  hereby  declared  that  until  civil  officers  shall  be 
sent  by  the  government  to  organize  the  civil  courts  for  the  administration 
of  justice,  the  territory  of  Arizona  is  hereby  placed  under  martial  law. 
Trials  for  capital  offences  shall  be  held  by  a  military  commission,  to  be  com- 
posed of  not  more  than  thirteen  nor  less  than  nine  commissioned  officers. 
The  rules  of  evidence  shall  be  those  customary  in  practice  under  the  com  - 
mon  law.  The  trials  shall  be  public  and  shall  be  trials  of  record,  and  the 
mode  of  procedure  shall  be  strictly  in  accordance  with  that  of  courts-mar- 
tial in  the  army  of  the  United  States.     Unless  the  public  safety  absolutely 


MARTIAL  LAW   IN   STATES   AND   TERRITORIES.  403 

The  summer  of  1892  has  furnished  an  unprecedented  number 
of  instances  within  the  States  of  the  military  power  being  ap- 
pealed to  for  that  energy  and  strength  which  civil  administra- 
tion lacked.  In  several  different  and  widely-separated  districts, 
riots  or  similar  disturbances,  accompanied  by  loss  of  life  and 
destruction  of  valuable  property,  demonstrated  how  inadequate 
municipal  authorities  may  quickly  become  to  secure  the  people 
the  enjoyment  of  their  just  rights  when  a  considerable  portion 
of  the  community  unite  in  setting  the  laws  at  defiance.  And 
not  only  that,  but  how  a  very  few  individuals,  encouraged  in 
lawless  deeds  by  secret  societies  who  tender  them  sympathy 
and  material  aid,  may  render  necessary  the  exertion  to  counter- 
act their  machinations,  the  exercise  for  a  protracted  period  of 
the  energies  of  government  upon  an  extensive  scale. 

The  contemplation  of  this  condition  of  affairs  must  give  rise 
to  disagreeable  sensations  in  the  breasts  of  all  citizens  who 
either  own  property  which  may  then  be  destroyed  or  who  de- 
sire only  to  live  in  peace  under  the  protection  of  the  law. 
The  instances  of  disorder  show  unmistakably  that  there  is 
abroad  in  the  land  a  spirit  of  reckless  defiance  of  authority 
which  the  experience  of  the  world  has  demonstrated  can  not  be 
controlled  without  the  application  of  overwhelming  physical 
force,  disciplined,  armed,  and  directed  systematically  to  that 
end. 

Not  the  least  alarming  feature  of  these  riotous  proceedings  is 
the  melancholy  evidence  they  furnish  of  the  general  helpless- 
ness in  their  presence  of  the  civil  authorities.  The  posse  comi- 
tahis  has  signally  failed.  It  is  an  old  and  honored  institution, 
sanctified  in  the  Anglo-Saxon  system  of  jurisprudence.     But 

requires  it,  no  execution  shall  follow  conviction  until  the  orders  in  the 
case  by  the  President  shall  be  known.  Trials  for  minor  offeuces  shall  be 
held  under  the  same  rules,  except  that  for  these  a  commission  of  not 
more  than  five  nor  less  than  three  commissioned  officers  may  sit,  and  a 
vote  of  the  majority  determine  the  issue.  In  these  cases  the  orders  of  the 
officers  ordering  the  commissions  shall  be  final.  All  matters  in  relation 
to  rights  in  property  and  lands  which  may  be  in  dispute  shall  be  deter- 
mined for  the  time  being  by  a  military  commission,  to  be  composed  of 
not  more  than  five  nor  less  than  three  commissioned  officers.  Of  course 
appeals  from  the  decisions  of  such  commissions  can  be  taken  to  the  civil 
courts  when  once  the  latter  have  been  established."  (R.  R.  S.,  1,  v.  9,  p. 
561.) 


404  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

events  are  fast  accumulating  which  furnish  ground  for  the  belief 
that  it  is  not  suited  to  the  present  conditions  of  society.  Where 
was  the  posse  comitatus  when  death  and  destruction  stalked 
abroad  in  the  Tennessee  and  Coeur  d' Alene  regions,  at  the  Home- 
stead, Pennsylvania,  mills,  and  the  extensive  railroad  depots  of 
Buffalo,  New  York  ?  The  confession  is  unwillingly  forced  from 
us  not  only  that  it  could  not  be  assembled  in  force  sufficient  to 
sustain  the  civil  officers  in  the  execution  of  the  law,  but  that  ef- 
forts to  do  this  only  brought  the  whole  system  into  contempt  by 
demonstrating  to  the  law-breakers  its  insufficiency  as  an  ener- 
getic, forceful  instrumentality  of  government.  There  exist,  of 
course,  reasons  for  this  change  from  former  and  honored  prac- 
tices. Private  citizens  in  the  disaffected  community  often  will 
not  brave  the  resentment  of  reckless  and  desperate  men  who 
compose  largely  the  disturbing  element,  by  appearing  in  arms 
against  them.  When  the  efficiency  of  the  posse  comitatus  was  at 
its  height,  society,  business  interests,  and  government  were  far 
less  complex  than  they  are  now.  And  while  sometimes 
it  may  still  be  resorted  to  effectively,  yet  the  time  seems  to  have 
arrived  when,  to  meet  great  emergencies  of  disorder,  local  or 
general,  resort  must  be  had  to  some  other  and  more  potent 
agency. 

If  the  posse  comitatus  fail,  some  other  effective  coercive  power 
must  take  its  place,  or  disorder  grows  apace  and  government 
fails  of  its  purpose.  That  power  is  the  military.  If  this  fail, 
revolution  results.  The  question  then  becomes  interesting, 
who  is  to  control  this  new  force,  the  military  authorities  alone, 
the  civil  alone,  or  both  combined,  and  working  to  a  common 
end  ?  The  question  is  not  only  interesting  but  of  importance  as 
well,  for  experience  everywhere  has  shown  that  this  force  of 
last  resort  acts  effectively  only  when,  whether  theoretically  so 
or  not,  it  is  practically  independent  of  civil  interference.  It 
does  not  fit  into  the  niche  in  the  governmental  structure  that  the 
Posse  comitatus  was  intended  to  fill  but  has  left  vacant.  It  is 
wholly  different  from  the  latter  in  origin,  organization,  design, 
and  method  of  employment.  The  opposite  assertion,  as  Hallam 
points  out,  is  a  sophism.  In  suppressing  the  disturbances  to 
which  reference  here  is  made,  the  military,  except  in  the  Idaho 
instance,  in  contemplation  of  law,  proceeded  in  co-operation 
with  if  not  in  subordination  to  the  civil  power.     But  did  the 


MARTIAL   LAW    IN   STATES    AND    TERRITORIES.  405 

latter  really  exercise  control  in  one  instance  ?  If  so,  it  is  not 
known  where  or  when.  At  most  the  civil  authorities  perforce 
contented  themselves  with  indicating  what  they  deemed  desir- 
able, and  then  the  military  proceeded  to  carry  out  the  plan 
agreed  upon.  In  this  union  of  civil  and  military  power  the 
latter  acted  with  preponderating  influence,  decision,  and  effect. 
At  Homestead  the  situation  fell  little  short  of  that  at  the  Coeur 
d'Alene  mines,  before  mentioned.  If  martial  law  did  not  hold 
sway  there  theoretically,  it  certainly  did  as  a  practical  fact ;  and 
from  necessity  the  civil  authorities  temporarily  were  powerless. 
Moreover,  the  military  performed  this  onerous  duty  well.  If 
errors  were  committed  they  were  the  inevitable  attendants  upon 
the  unusual  and  trying  situation  in  which  the  troops  were 
placed.  The  manifest  and  gratifying  result  was  the  speedy  re- 
establishment  of  order  and  the  rule  of  law  where  before  there 
reigned  social  anarchy  which  aimed  at  nothing  short  of  the 
destruction  of  all  government  save  that  of  the  mob.  An  effi- 
cient substitute  for  the  apparently  obsolete  posse  comitatus  has 
been  found. 

In  none  of  the  instances  here  referred  to  was  martial  law  for- 
mally declared  over  the  theatre  of  disturbance.  Yet  in  all,  if 
not  equally,  it  was  carried  into  effect.  When  civil  officers,  with- 
out the  interposition  of  those  instrumentalities  which  the  law  has 
provided  for  the  purpose,  are  deposed  and  others  set  up  in  their 
places  by  the  military  arm  ;  when  civilians  are  arrested,  and  in 
some  cases  injured  even  unto  death  by  the  same  dominant  power, 
regardless  of  civil  precepts,  martial  law  prevails.  Whether  jus- 
tifiable or  not  may  become  a  matter  of  subsequent  determina- 
tion. It  certainly  was  deemed  so  at  the  time,  for  in  each  in- 
stance civil  officers  asked  for  this  power  and  assisted  to  give  it 
direction,  while  all  good  citizens  welcomed  the  military  as  con- 
servators of  peace,  defenders  of  their  homes,  and  vindicators  of 
that  law  which  alone  renders  life,  liberty,  and  property  secure. 

The  effect  of  this  supremacy  of  military  power — not  self- 
sought,  but  forced  upon  the  soldier  either  because  the  civil  of- 
ficers surrendered  their  authority,  or  through  sympathy  with 
the  lawless  element  proved  themselves  unworthy  to  exercise  it, 
thus  necessitating  their  removal — was  that  whenever  the  mili- 
tary were  thus  made  predominant  the  law  of  the  camp  ex- 
tended to  the  degree  that  the  successful  application  of  the  mar- 


406  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

tial-law  power  rendered  necessary.  It  is  true  that  its  exercise 
was  actually  brought  home  to  comparatively  few  people,  for  the 
masses  were  well  disposed,  desiring  only  to  live  in  peace  and 
quiet.  It  was  not  a  state  of  war,  yet  the  conditions  were  far 
from  that  of  peace.  In  every  instance  the  recognized  officers 
of  the  law  either  could  or  would  not  perform  their  appropriate 
functions,  because  violent  physical  force  and  measures  deterred 
them.*  While,  therefore,  it  was  not  technically  a  state  of  war, 
the  status  was  not  wholly  unlike  it.  The  situation  brought 
with  it  new  offences,  aggravated  the  hienousness  of  others,  and 
rendered  necessary  the  adoption  of  measures,  repressive  and 
deterrent,  which  at  other  and  more  orderly  times  would  not 
have  been  justifiable.  Such  measures  are  not  to  be  judged  by 
the  standard  of  peace  alone,  but  by  that  of  the  quasi  state  of 
war  which  gave  rise  to  them.  An  act  which  in  ordinary  times 
would  be  harmless  and  pass  unnoticed,  might  now  become  so 
aggravated  an  offence  as  to  render  proper  the  most  summary 
and  effective  punishment.  The  transgression  may  be  such  that 
if  left  unnoticed  will  lead  to  the  most  deplorable  results.  That 
is  the  case  with  mutiny  in  all  services,  and  which  is  held  to 
justify  the  infliction  of  the  death  penalty  even  during  peace. 
The  summary  punishment  of  offenders  under  martial  law  pro- 
ceeds upon  the  same  principle.  Otherwise,  and  if  the  slower 
process  of  the  regularly-constituted  tribunals  be  resorted  to,  the 
moment  for  effective  action  may  pass,  the  evil  example  have 
worked  its  baleful  influence,  and  punishment  as  a  deterrent 
measure  be  useless. 

Necessity  is  the  keynote.  Obviously,  measures  which  would 
be  justifiable  in  a  serious  insurrection  would  be  excessive  under 
a  less  disturbed  condition  of  affairs. '    In  the  long  run  any  amount 

*  Note. — In  this  connection  the  following  extract  from  the  charge  of  the 
Chief  Justice  of  Pennsylvania  to  the  grand  jury  in  the  case  of  the  Home- 
stead rioters  is  interesting  :  "  A  mere  mob,  collected  upon  the  impulse  of 
the  moment,  without  any  definite  object  beyond  the  gratification  of  its 
sudden  passions,  does  not  commit  treason,  although  it  destroys  property 
and  attacks  human  life.  But  when  a  large  number  of  men  arm  and  or- 
ganize themselves,  and  engage  in  a  common  purpose  to  defy  the  law,  to 
resist  its  officers  and  deprive  their  fellow  citizens  of  the  rights  to  which 
they  are  entitled  under  the  Constitution  and  laws,  it  is  a  levying  of  war 
against  the  State  and  the  offence  is  treason." 

I.  U.  Young,  "Military  v.  Mobs,"  1888. 


MARTIAL   LAW   IN   STATES   AND   TERRITORIES.  407 

of  just  severity  becomes  a  mercy  ;  the  bringing  a  few  promptly 
to  answer  for  their  offences  may  be  the  means  of  saving  much 
property,  many  lives,  and  prevent  the  spread  of  the  contagion 
of  revolt.  When  military  officers  in  the  presence  of  mob  rule, 
or  other  similar  danger  to  the  social  order,  are  constrained  to 
take  summary  measures,  it  may  not  be  possible  to  justify  their 
conduct  under  the  strict  rules  of  law.  But  no  instance  is  on 
record  where  exemplary  damages  were  recovered  unless  wanton 
disregard  of  human  rights  was  evident  on  the  part  of  the  of- 
ficer, and  such  cases  have  been  very  rare.  Judges  and  juries 
on  such  occasions  are  not  inclined,  nor  if  inclined  are  they  at 
liberty  to  ignore  the  all-important  fact  that  the  officer  has  acted 
for  the  good  of  the  whole  community,  even  if  thereby  a  techni- 
cal invasion  of  the  rights  of  individuals  has  resulted.  The 
danger  may  have  been  secret,  not  to  be  seen  or  heard,  but  felt, 
like  the  dissemination  of  the  spirit  of  mutiny,  or  the  virus  of 
insurrection  and  revolt.  Some  one  must  take  control  and 
act  promptly  to  prevent  direst  consequences  perhaps,  and  no 
one  can  do  this  under  martial  law  whether  formally  proclaimed 
or  not  except  the  military  officer.  No  principle  is  better  es- 
tablished in  the  rugged  common-law  system  of  jurisprudence 
than  that  occasions  arise  when  the  rights  of  individuals  must 
temporarily  give  way  to  the  public  welfare.  This  is  an  occasion 
when  the  principle  has  application.  If  damages  are  recover- 
able at  all  against  officers,  owing  to  the  particular  circum- 
stances of  the  case,  they  are  only  compensatory,  not  vindictive, 
unless  it  can  be  shown  that  the  adjudged  wrong  complained  of 
was  wrought  with  an  evil  intention  or  from  bad  motives. 

In  England  it  has  been  laid  down  that  no  civil  action  will  lie 
in  the  first  instance  against  a  commissioned  officer  for  a  dis- 
cretionary exercise  of  military  authority  whilst  in  the  perform- 
ance of  actual  duty  in  the  field.  If  the  authority  be  dis- 
cretionary, questions  regarding  its  exercise  are  so  essentially 
military  that  the  civil  tribunals  decline  to  consider  them  with- 
out the  previous  judgment  of  a  court-martial.1 

1.  Pendergrast,  p.  138;  Barwis  v.  Keppel,  2  Wilson,  314;  Sutton  v. 
Johnson,  1,  Term  Repts.,  548. 


408  MILITARY   GOVERNMENT   AND   MARTIAL    LAW. 


CHAPTER   IX. 


ADMINISTRATION   OF    MARTIAL   LAW. 

Martial  law  existing  either  by  proclamation  or  force  of  cir- 
cumstances, an  efficient  system  of  administration  must  be  main- 
tained. Otherwise,  instead  of  ameliorating  the  condition  of 
society  or  being  a  weapon  of  defence  against  an  enemy,  it  might 
prove  to  be  the  reverse.  Hence  the  officer  entrusted  with  its 
enforcement  should  make  clear  what  authority  his  subordinates 
may  exercise.  All,  whether  soldiers  or  civilians,  within  the 
martial-law  field  are  subject  to  his  orders.  If  it  be  a  case  of  leg- 
islative martial  law,  the  statute,  in  so  far  as  it  shows  what  the 
legislative  will  is,  prescribes  the  rule  of  action.  In  other  re- 
spects the  rules  by  which  it  is  to  be  carried  into  execution  are 
found  in  military  orders  or  the  customs  of  service,  meaning  by 
'  custom  '  the  precedents  established  by  determining  what  has 
been  treated  as  justifiable  in  our  own  and  other  countries  under 
similar  circumstances.  This  makes  the  administration  of  mar- 
tial law  a  delicate  matter,  because,  first,  the  times  give  birth  to 
many  offences  which  ordinarily  would  not  be  noticed,  or  greatly 
aggravates  those  already  known  to  the  law  ;  second,  special 
tribunals  may  be  necessary  for  both  new  offences  or  ordinary 
cues  which  must  now  be  tried  under  unusual  conditions  ;  third, 
those  who  are  instrumental  in  enforcing  martial  law  may  be 
held  legally  responsible  for  their  acts. 

"  The  effect  of  the  declaration  of  martial  law,"  says  Finla- 
son,  "  is  to  establish  in  the  proclaimed  district  a  state  of  war 
and  a  species  of  rule,  altogether  different  from  and  opposite  to 
that  of  the  common  law  in  every  respect,  whether  as  to  (i) 
offences,  (2)  penalties,  (3)  manner  of  procedure,  (4)  power  of 
arrest,  (5)  nature  of  proof,  (6)  mode  of  trial.1  In  the  extreme 
case  this  is  true.  It  was  so  in  Ireland  in  1798  and  1803,  in 
Jamaica  in  1865,  Arizona  in  1862,  East  Tennessee  in  1862-3, 
and  other  portions  of  the  Confederacy  at  various  times  during 

1.  Commentaries  on  Martial  Law,  p.  58, 


ADMINISTRATION    OF   MARTIAL   LAW.  409 

the  civil  war,  and  in  portions  of  Missouri  and  Kentucky  under 
Federal  control  from  1861  to  1865.  This,  however,  is  martial 
law  in  its  severest  form.  In  most  instances  the  commander  is 
not  only  willing  but  anxious  to  avail  himself  to  the  utmost, 
consistent  with  military  control,  of  the  ordinary  machinery  of 
government.  All  civil  ordinances  and  instrumentalities  may. 
indeed,  be  ignored  ;  they  exist  only  at  the  will  of  the  com- 
mander, but  they  remain  in  existence  and  continue  in  operation 
unless  he  decides  to  the  contrary.  Hence,  not  only  in  justice 
to  all  concerned  but  for  his  own  convenience,  the  military  com- 
mander publicly  should  make  known  the  principles  upon  which 
martial  law  is  to  be  enforced.  And  this  both  as  to  matters 
civil  and  criminal. 

Reverting  to  the  fact  that  under  martial  law  many  offences 
unknown  to  ordinary  times  may  spring  up,  while  others  become 
aggravated,  it  may  be  instanced  that  seditious  publications 
tending  to  excite  rebellion  often  on  account  of  that  tendency  are 
peculiarly  dangerous,  for,  although  in  times  of  peace  they  may 
do  no  great  mischief,  in  times  of  insurrection  they  are  most 
formidable  and  fatal  offences.1  At  such  times  overt  acts,  which 
although  taken  alone  and  without  reference  to  the  actual  cir- 
cumstances of  the  military  situation  might  not  amount  to  any 
crime,  may  become  injurious  and  criminal.  "A  citizen,"  says 
Whiting,  "may  commit  acts  to  which  he  is  accustomed  in  or- 
dinary times,  but  which  become  grave  offences  in  time  of  war 
although  not  embraced  in  the  civil  penal  code.  Actions  not 
constituting  any  offence  against  the  municipal  code  of  the 
country,  having  become  highly  injurious  and  embarrassing  to 
military  operations,  may  and  must  be  prevented  and  punished. 
If  an  act  which  interferes  with  military  operations  is  not  con- 
trary to  the  municipal;  the  greater  is  the  reason  for  preventing 
it  by  martial  law.  And  if  it  may  not  be  punished  or  prevented 
by  civil  or  criminal  law,  this  fact  makes  stronger  the  necessity 
for  preventing  evil  consequences  by  arresting  the  offender."  '' 

It  is,  as  was  remarked  when  treating  of  military  government, 
a  well-established  rule  that  belligerents  have  the  right  to  em- 
ploy such  force  as  may  be  necessary  to  obtain  the  object  of  the 

1.  Wells' Jurisdiction  of  Courts,  p.  578;  Fiulason,   Martial  Law,  p.   104. 

2.  War  Powers,  10th  ed.,  p.  190. 


4IO  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

war.  Beyond  this  the  use  of  force  is  said  to  be  unlawful. 
The  same  principle  governs  under  martial  law.  In  both  cases 
the  use  of  force  is  authorized  to  the  extent  that  may  be  neces- 
sary. The  commander  determines  what  acts  of  persons  within 
his  jurisdiction  are  offences  under  the  martial-law  code.  If  he 
have  the  power  of  determining  what  constitutes  an  offence,  he  has 
the  power  to  apply  the  preventive  or  corrective  principle, 
whether  it  be  trial  and  punishment  or  merely  the  summary  arrest 
and  detention  of  the  offender.  Arrest  of  the  person  is  of  little 
consequence  if  power  to  detain,  in  spite  of  civil  writs,  does  not 
exist.  Hence  the  importance  of  that  clause  of  the  Constitu- 
tion of  the  United  States  authorizing  in  certain  exigencies 
the  supension  of  the  privilege  of  the  writ  of  habeas  corpus.1 
There  is  no  doubt  of  the  existence  of  the  power.  The  lan- 
guage of  the  Constitution  is  clear  upon  that  point.  The  great 
question  is  as  to  who  is  authorized  to  exercise  the  power. 

Much  attention  was  given  this  subject  during  the  civil  war. 
As  we  have  seen,  the  President  of  the  United  States  early  re- 
sorted to  this  measure,  and  continued  to  suspend  the  writ 
throughout  the  war,  although  after  the  proclamation  of  Sep- 
tember 25,  1863,  it  was  done  under  legislative  authority.  The 
polemic  contest  between  those  who  sustained  the  President  and 
those  who  maintained  that  Congress  alone  had  power  to  sus- 
pend the  privilege  of  the  writ  of  habeas  corpus  was  earnest, 
protracted,  and  characterized  by  an  intensity  of  feeling  show- 
ing that  the  disputants  were  fully  aware  that  there  was  here 
involved  a  determination  of  one  of  the  most  important  constitu- 
tional principles,  and  one  affecting  the  most  cherished  of  all 
rights,  that  of  personal  liberty. 

It  might  appear  that  the  President  by  giving  his  sanction  to 
the  act  of  March  3d,  1863,  acquiesced  in  the  view  that  the  au- 
thority to  suspend  the  privilege  of  the  writ  belonged  to  Con- 
gress alone.  The  conclusion,  however,  does  not  follow  from 
the  premises.  The  President  was  not  inclined  to  engage  in 
controversies  with  the  friends  of  the  Union  upon  nice  shades  of 
construction  of  the  Fundamental  L,aw.  The  times  were  not 
propitious  for  it.  His  mind  was  intently  fixed  upon  a  success- 
ful issue  of  the  great  struggle  for  the  preservation  of  the  Union. 

1.  Art.  1,  sec.  9,  cl.  2. 


ADMINISTRATION    OF    MARTIAL   LAW.  4II 

This  in  his  view  dwarfed  every  other  consideration.  The  act 
referred  to  strengthened  his  hands  for  this  mighty  work.  That 
fact  was  snfficeint  to  ensure  its  approval.  But  there  exists  not 
the  slightest  evidence  that  for  one  moment  then  or  at  any  time 
he  doubted  his  power,  should  the  necessities  of  the  war  in  his 
judgment  justify  the  measure,  to  suspend  the  privilege  of  the 
writ  of  habeas  corpus.  In  the  nature  of  things  it  would  seem 
that  the  executive  department  must  have  that  power.  It  is  the 
department  which  keeps  watch  and  ward  over  the  public  safety. 
If  not  entrusted  with  power  necessary  to  that  end  it  will  either 
be  usurped  or  government  fail  in  its  duty.  Moreover,  experi- 
ence has  shown  that  danger  to  the  liberty  of  the  citizen  may 
flow  from  legislative  as  well  as  executive  action.  Consider  the 
Parliament  of  Great  Britain  from  1642  to  1658  ;  the  National 
Assembly  of  France  and  its  successors  from  1789  to  1799  ;  and 
the  Congress  of  the  United  States  in  1867.  Not  that  either  one 
of  these  legislative  bodies  did  anything  not  justified  by  events  ; 
yet  it  will  not  be  denied  that  their  acts  bore  with  terrible  se- 
verity upon  portions  of  the  community  ;  and  their  history 
brings  ever  to  the  minds  of  all  a  realizing  sense  of  the  impor- 
tant fact  that  the  legislature  equally  with  the  executive  may 
resort  to  extreme  measures — deterrent,  coercive,  punitive. 

Within  the  martial-law  district  all  persons  who  act  as  enemies, 
and  all  who  by  word  or  deed  give  the  authorities  reasonable 
cause  to  believe  that  they  intend  to  act  as  such,  may  lawfully 
be  arrested  and  detained  for  the  purposes  of  preventing  the  con- 
sequences of  their  acts.1  That  was  the  law  as  laid  down  in 
IyUther  v.  Borden. 

The  earliest  amendments  to  the  Constitution  are  in  the  nature 
of  a  bill  of  rights.2  That  unquestionably  is  what  they  were  in- 
tended to  be,  and  unlike  the  privilege  of  the  writ  of  habeas 
corpus,  there  is  no  express  provision  in  the  Constitution  for 
suspending,  under  any  circumstances,  the  guarantees  of  life, 
liberty,  and  property  therein  contained.  If,  however,  war  in- 
tervenes they  remain  available  only  subordinate  to  military 
necessities.  Otherwise  war  could  not  successfully  be  prosecuted. 
The  existence  of  martial  law  may  suspend  these  rights  or  con- 
tinue them  only  so  far  as  their  existence  is  compatible  with 

1.  Whiting,  War  Powers,  198.  2.  Articles  1  to  8. 


412  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

military  exigencies.  Here  the  military  commander,  in  the  first 
instance,  must  be  the  judge,  and  all  within  the  limits  of  his  au- 
thority must,  for  the  time  being,  submit  to  his  decisions. 

In  his  argument  before  the  Supreme  Court  of  the  United 
States,  January  27,  1848,'  Mr.  Webster  very  clearly  set  forth 
the  discretionary  nature  of  the  commander's  martial-law  au- 
thority in  the  following  words  :  "I  shall  only  draw  attention  to 
the  subject  of  martial  law,  and  in  respect  to  that,  instead  of 
going  back  to  martial  law  as  it  existed  in  England  at  the  time 
the  charter  of  Rhode  Island  was  granted,  I  shall  merely  ob- 
serve that  martial  law  confers  power  of  arrest,  of  summary  trial, 
and  prompt  execution,  and  that  when  it  has  been  proclaimed 
the  land  becomes  a  camp,  and  the  law  of  the  camp  is  the  law 
of  the  land.  Mr.  Justice  Story  defines  martial  law  to  be  the 
law  of  war,  a  resort  to  military  authority  in  cases  where  the  civil 
law  is  not  sufficient ;  and  it  confers  summary  power,  not  to  be 
used  arbitrarily  or  for  the  gratification  of  personal  feelings  of 
hatred  or  revenge,  but  for  the  preservation  of  order  and  public 
peace.  The  officer  clothed  with  it  is  to  judge  of  the  degree  of 
force  that  the  necessity  of  the  case  may  demand,  and  there  is 
no  limit  to  this  except  such  as  is  to  be  found  in  the  nature  and 
character  of  the  exigency. ' '  Had  it  been  added  that  on  the  one 
hand,  when  used  calmly,  reasonably,  and  with  the  evident  de- 
sire to  compass  the  public  weal,  though  great  errors  of  judg- 
ment may  have  been  made,  much  latitude  is  permitted  the 
commander  in  the  exercise  of  his  authority  ;  and  on  the  other 
hand,  if  a  determination  to  use  power  for  personal  ends  or  in  an 
oppressive  manner  be  manifest,  he  is  liable  to  be  held  to  account 
for  his  acts  both  militarily  and  civilly,  the  picture  is  complete. 
The  rule  is  that  when  martial  law  exists,  either  by  proclama- 
tion or  otherwise,  the  commanding  officer  must  use  his  discre- 
tion, and  he  is  reasonably  expected  to  come  as  near  to  the  line 
of  justice  and  fair  dealing  as  the  circumstances  and  the  infor- 
mation he  has  or  might  easily  obtain  will  permit. 

In  all  cases  the  commander  must  assume  the  responsibility  of 
acting.  He  can  not  delegate  his  power  to  another  and  so  evade 
that  responsibility.     He  will  find  justification,  if  that  be  legally 

1.  Case  of  Luther  v.  Borden  (for  defendant)  ;  Webster's  Works,  vol.  6,  p. 
240. 


Administration  of  martial  law.  413 

questioned,  in  the  exigency  of  the  times,  and  his  ability  to 
prove  that  giving  credence  to  information  which  he  had  a  right 
to  depend  upon,  his  measures  were  proper.  But  the  justifying 
facts  must,  if  the  case  be  brought  to  trial,  be  found  by  a  jury 
either  to  have  existed,  or,  if  not,  then  that  the  officer,  acting  as 
one  should  in  his  station,  was  warranted  in  believing  that  they 
existed. 

The  remarks  of  the  supreme  court  of  Indiana  in  the  case  of 
McCormick  v.  Humphrey  evince  a  just  appreciation  of  the  dif- 
ficulties which  sometimes  embarrass  commanders  even  within 
friendly  territory.1  At  the  same  time  the  principles  enunciated 
are  very  strong  for  the  necessity  that  exists  of  sustaining  of- 
ficers in  the  exercise  of  martial-law  power,  even  though  the 
danger  that  besets  them  instead  of  being  open  rebellion  is  secret 
conspiracy.  It  was  alleged  that  Humphrey  during  the  latter 
days  of  the  civil  war  was  an  officer  in  a  treasonable  organization 
Indiana  the  object  of  which  was  to  give  the  enemy  aid  and  in 
comfort.  McCormick,  a  civil  officer,  arrested  him.  The  local 
court  refused  to  transfer  the  case,  under  section  5,  act  March 
3d,  1863,  to  the  United  States  circuit  court  for  determination  ; 
on  appeal  to  the  State  supreme  court  the  decision  of  the  lower 
court  was  reversed.  In  the  opinion  the  supreme  court  re- 
marked :  "In  October,  1864,  the  armies  of  the  United  States 
were  in  active  service  in  the  field.  To  sustain  these  armies  the 
Government  was  drawing  supplies,  both  of  men  and  material, 
from  this  State.  Its  officers  were  active  in  procuring  the  en- 
listment of  recruits  for  the  military  service.  Without  these 
supplies  from  the  country  in  rear  of  the  armies  it  was  impos- 
sible to  carry  forward  movements  or  to  prosecute  the  war. 
Prisoners  of  war  were  sent  by  the  military  officers  in  command 
of  our  forces  in  the  field,  to  military  camps  within  the  State,  to 
be  guarded  and  securely  kept.  Under  these  circumstances  was 
it  the  duty  of  the  President  or  of  the  officers  in  command  of 
the  military  district  under  him  to  permit  a  hostile  organization, 
as  alleged  in  the  petition,  to  be  formed,  armed,  and  freely  or- 
ganized, to  act  in  the  interests  of  the  rebellion,  and  by  force  of 
arms  to  attempt  the  release  of  the  prisoners  of  war  and  the 
destruction  of  the  government  ?     Must  the  military  commander 


27  Indiana,  144  (1866). 


4I4  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

wait  for  an  actual  attack  upon  the  military  camps  ?  Must  he 
depend  upon  the  courts  to  guard  the  prisoners  of  war  placed 
under  his  charge  ?  Must  he  permit  the  supplies  of  men  and 
provisions  to  be  cut  off,  and  the  country  in  rear  of  our  armies 
to  be  occupied  by  hostile  forces  ?  Must  he  wait  for  the  blow  to 
fall,  or  may  he  seize  the  conspirators  while  they  are  collecting 
their  forces  and  preparing  to  strike  ?  These  are  grave  questions  ; 
they  may  involve  not  only  the  liberty  of  the  men  who,  while 
claiming  to  be  peaceable  citizens  employed  in  civil  pursuits, 
were,  it  is  charged,  in  fact  engaged  in  secretly  organizing  a  hos- 
tile military  movement  for  the  destruction  of  their  own  gov- 
ernment ;  but  the  decision  of  these  questions  may  also  concern 
the  future  life  of  the  nation." 

This  is  all  true.  The  necessity  that  exists  for  arbitrary  ar- 
rests may  not  always  be  confined  to  times  and  places  of  open 
resistance  to  the  execution  of  the  laws.  The  arm  of  authority 
may  as  effectually  be  stricken  down  by  the  hostile  workings  of 
professed  friends  as  by  the  more  manly  defiance  of  open 
enemies.  Indeed  the  former  may  constitute  the  greater  dan- 
ger, because  it  operates  under  cover,  lulling  vigilance  into  fan- 
cied security  until  the  deadly  work  is  accomplished  ;  while  in 
the  latter  case  government  is  at  once  put  upon  its  guard. 

In  the  United  States  there  has  been  a  change  of  judicial 
opinion  on  this  subject,1  which  marks  the  approach  of  the  bench 
to  firmer  ground.  Speculations  of  former  days  have  given 
place  to  the  rational,  practical  principles  of  the  present,  based 
on  a  century's  experience  of  peace  and  war. 

The  difference  discernible  between  the  opinion  of  the  Louis- 
iana court  in  Johnson  v.  Duncan,2  and  of  the  Supreme  Court  of 
the  United  States  in  Uuther  v.  Borden  and  Ex  parte  Milligan 
illustrates  this.  The  first  case  mentioned  arose  out  of  the  dec- 
laration of  martial  law  at  New  Orleans  in  1814.  And  the  fact 
before  remarked  upon,  that  the  commanding  general  and  the 
civil  courts  came  into  direct  conflict  on  that  occasion,  seems  to 
have  given  to  the  remarks  of  the  judges  an  unwonted  vigor, 
and  created  in  their  minds  a  bias  which  can  not  but  impair 
the  value,  as  correct  expositions  of  the  law,  of  the  views  they 

1.  Hare,  Const.  Law,  v.  2,  p.  973. 

2.  Martin  (La.),  vol.  3,  O.  S.,  p.  530  et  seq. 


ADMINISTRATION    OF    MARTIAL    LAW.  4I5 

expressed.  "Amotion  that  the  court  might  proceed  in  this 
case,"  says  the  opinion,  "has  been  resisted  on  two  grounds: 
first,  that  the  city  [of  New  Orleans]  and  its  environs  were,  by 
general  orders  of  the  officer  commanding  the  military  district, 
put,  on  the  15th  of  December  last,  under  strict  martial  law. 
*  *  *  *  At  the  close  of  the  argument  on  Monday  we 
thought  it  our  duty,  lest  the  smallest  delay  should  countenance 
the  idea  that  this  court  entertain  any  doubt  on  they?;^/  ground, 
instantly  to  declare  viva  voce  (although  the  practice  is  to  deliver 
our  opinions  in  writing),  that  the  exercise  of  an  authority  vested 
by  law  in  this  court  can  not  be  suspended  by  any  man. 

"  In  any  other  State  but  this,  in  the  population  of  which  are 
many  individuals  who,  not  being  perfectly  acquainted  with 
their  rights,  may  easily  be  imposed  upon,  it  could  not  be  ex- 
pected that  the  judges  of  this  court  should,  in  complying  with 
the  constitutional  injunction,  in  all  cases  to  adduce  the  reasons 
on  which  their  judgment  is  founded,  take  up  much  time  to 
show  that  this  court  is  bound  utterly  to  disregard  what  is  thus 
called  martial  law,  if  anything  be  meant  thereby  but  the  strict 
enforcing  of  the  rules  and  articles  for  the  government  of  the 
army  of  the  United  States  established  by  Congress,  or  any  act 
of  that  body  relating  to  military  matters,  on  all  individuals  be- 
longing to  the  army  or  militia  in  the  service  of  the  United 
States.  Yet  we  are  told,  by  this  proclamation  of  martial  law, 
the  officer  who  issued  it  has  conferred  on  himself,  over  all  his 
fellow-citizens  within  the  space  which  he  has  described,  a 
supreme  and  unlimited  power,  which,  being  imcompatible  with 
the  exercise  of  the  functions  of  civil  magistrates,  necessarily 
suspends  them.  *  *  *  *  Under  the  Constitution  and  laws 
of  the  United  States,  the  President  has  a  right  to  call  or  to  cause 
to  be  called  into  the  service  of  the  United  States  even  the  whole 
militia  of  any  part  of  the  Union  in  case  of  invasion.  This 
power,  exercised  here  by  his  delegate,  has  placed  all  the  citizens 
here  subject  to  military  duty  under  military  authority  and  mili- 
tary law.  That  is  conceived  to  be  the  extent  of  martial  law, 
beyond  which  all  is  usurpation  of  power." 

In  the  light  of  the  decisions  of  the  Supreme  Court  of  the 
United  States  in  L,uther  v.  Borden,  Ex  parte  Milligan,  and  the 
numerous  instances  where  the  military  during  the  civil  war 
assumed  the  responsibility  of  enforcing  martial  law,  the  Presi- 


416  MILITARY   GOVERNMENT   AND    MARTIAL    LA"U  . 

dent's  proclamations  to  the  same  effect,  as  well  as  the  experience 
of  the  States  of  the  Union  during  the  last  half  century,  this 
opinion  of  the  Louisiana  court  seems  strangely  wide  of  the 
mark,  and  indicates  a  surprising  lack  of  appreciation  of  the 
nature  of  that  law. 

Unquestionably  the  judges  were  honest  in  their  expressed 
convictions.  But  they  did  not  state  the  law.  The  cause  of 
action  they  were  passing  upon  arose  when  the  city  was  under 
martial  law  and  the  enemy  near  at  hand  were  menacing  de- 
scent. Whatever  diversity  of  views  may  exist  regarding  the 
legality  of  martial  law  on  other  occasions,  repeated  decisions  of 
the  Supreme  Court  of  the  United  States  have  established  be- 
yond cavil  that  martial  law  is  legal  under  such  circumstances  ;  ' 
and  being  so,  the  functions  of  all  civil  tribunals  were  suspended 
temporarily  except  in  so  far  as  the  military  commander  might 
require  their  assistance.  If  the  Louisiana  judges  were  right, 
then  the  act  of  the  Rhode  Island  legislature  declaring  martial 
law  was  void  ;  the  decision  of  the  Supreme  Court  of  the  United 
States  sustaining  its  action  was  judicial  tyranny  ;  and  the  de- 
liberate judgment  of  the  same  court  in  Ex  parte  Milligan  that 
under  just  such  circumstances  as  surrounded  New  Orleans  in 
1814-'  15  martial  law  was  justifiable,  was  an  act  of  judicial  usurp- 
ation which  ruthlessly  trampled  under  foot  the  most  sacred 
rights  of  the  citizen  ;  the  proclamation  of  the  President  institu- 
ting martial  law  in  Kentucky,  and  the  various  orders  of  mili- 
tary commanders  establishing  martial  law  in  the  same  State, 
and  in  Missouri,  Kansas,  Arizona,  New  Mexico,  and  other 
places  during  the  civil  war,  were  all  mere  nullities,  conferring 
no  rights  upon  the  military  authorities,  and  relieving  them  of 
no  responsibility  for  any  acts  which  affected  civilians  within 
the  proclaimed  district. 

In  this  age  and  at  this  stage  of  governmental  development 
it  is  scarcely  necessary  to  remark  that  this  is  not  the  judicial 
interpretation  of  the  law.  The  opinion  of  the  Louisiana  judges 
belongs  to  that  class  of  legal  theories  which  would  hold  the  com- 
mander liable  for  destroying  the  house  of  a  loyal  citizen  which 
protected  and  strengthened  the  enemy's  line  of  battle,  and 
which  would  compel  him  either  to  keep  to  the  public  roads  in 
taking  up  his  position  on  the  field,  or  be  adjudged  a  trespasser 

1.  7  Howard,  1  ;  4  Wallace,  2  ;  no  U.  S.,  633  ;  18  Wallace,  510. 


ADMINISTRATION   OF   MARTIAL   LAW.  417 

for  treading  down  while  so  doing  the  growing  corn  by  taking  a 
more  direct  route.  Well-meaning  people,  and  jurists,  even,  have 
held  such  views.  But  they  find  no  lodgment  in  the  minds  of 
practical  men.  They  are  mere  vagaries  which  never  receive 
serious  consideration  from  those  who  are  entrusted  with  the 
powers  and  responsibilities  of  government. 

Nor  was  the  conduct  of  the  Louisiana  judiciary  in  1815  re- 
garding the  enforcement  of  martial  law  consistent  in  itself. 
The  bar  and  bench  of  the  city  had  joined  with  the  other  best 
elements  of  the  citizens  in  advising  the  measure.  That  was 
when  danger  was  impending.  Martial  law  was  enforced  ;  the 
enemy  driven  back  in  confusion  ;  peace  returned  to  bless  the 
land  ;  and  now  the  judiciary,  when  all  danger  is  passed,  boldly 
comes  forth  the  champion  of  the  citizens  whose  rights  it  is 
assumed  have  been  jeopardized  or  disregarded  through  the 
necessary  measures  of  that  military  power  which  they  had 
invoked  to  save  them  from  a  rapacious  enemy. 


41 8  MILITARY  GOVERNMENT   AND    MARTIAL   LAW. 


CHAPTER  X. 

MARTIAL-LAW  TRIBUNALS. 

As  martial  law  brings  unusual  offences,  it  authorizes  also 
tribunals  suited  to  their  adjudication.  In  his  Principles  of 
Constitutional  L,aw  Judge  Cooley  remarks  that  offences  against 
martial  law  and  the  laws  of  war,  and  all  acts  not  justified  by 
the  latter  which  are  calculated  to  impede  or  obstruct  the  opera- 
tion of  the  military  authorities,  or  to  render  abortive  any  at- 
tempt of  the  government  to  enforce  its  authority,  may  be  pun- 
ished by  military  courts  and  commissions  organized  either  by 
the  President  as  commander-in-chief,  or  by  the  immediate  mili- 
tary commander,  or  established  under  the  authority  of  Con- 
gress. But  these  tribunals,  he  maintains,  can  not  try  offences 
against  the  general  laws  when  the  courts  of  the  land  are  in  the 
performance  of  their  regular  functions  and  no  impediment 
exists  to  a  lawful  prosecution  there.  An  impediment  does 
exist,  however,  when  martial  law  is  lawfully  declared  ;  and 
this  creates  an  exception  to  the  general  rule  obtaining  in  times 
of  peace,  that  the  military  is  in  strict  subordination  to  the  civil 
power.1 

It  is  not  to  be  denied  that  the  legality  of  martial-law  tri- 
bunals has  been  brought  in  question.  "  How,"  it  has  been 
asked,  "  are  they  to  be  organized  ?  What  shall  be  the  number 
of  their  members?  What  offences  come  within  their  juris- 
diction ?  What  is  their  code  of  procedure  ?  How  shall  wit- 
nesses be  compelled  to  attend  ?  Is  it  perjury  for  a  witness  to 
swear  falsely  ? ' '  And  it  has  been  asserted  that  none  of  these 
questions  can  be  answered,  because  they  are  not  matter  of  posi- 
tive enactment.2 

To  this  it  truthfully  may  be  answered,  that  long-established 
custom  has  fully  settled  all  these  questions.  They  are  based 
on  no  more  reason  than  similar  questions  would  be  regarding 


i.  p.  137.  2.  Ex  parte  Milligau,  4  Wallace,  83. 


MarTial-lAW  Tribunals.  419 

common-law  courts,  because  the  latter  are  not  founded  on  posi- 
tive provisions  of  the  law.  The  same  objections  might  be 
raised  also  against  the  whole  system  of  international  law  which 
is  not  founded  on  statute.  Both  common-law  courts  and  mar- 
tial-law tribunals  have  the  same  origin — custom  approved  by 
those  who  have  the  power  to  enforce  their  decrees.  With  as 
much  reason  can  '  the  customs  of  war  '  be  questioned  as  can  the 
validity  under  proper  conditions  of  military  commissions.  In- 
deed, these  customs  and  commissions  are  the  counterparts  of  one 
another.  Yet  the  former  are  not  based  on  the  written  law. 
They  are,  however,  recognized  by  statute,  every  officer  sitting 
on  a  court-martial  swearing  to  observe  the  customs  of  war  in 
the  trial  of  the  case  in  hearing  ;  but  whether  recognized  by 
statute  or  not,  they  will  continue  to  exist  so  long  as  military 
establishments  are  maintained. 

/;/  re  Neagle  the  appellant  took  the  ground  that  as  there  was 
no  statute  authorizing  in  terms  a  United  States  marshal  to  ac- 
company a  justice  of  the  Supreme  Court  on  circuit  to  protect 
him  from  bodily  harm,  a  marshal  so  employed  who  took  the 
life  of  one  who  assailed  the  justice  was  not  acting  under  a  '  law 
of  the  United  States  '  within  the  purview  of  section  753  Re- 
vised Statutes.1  But  the  Supreme  Court  of  the  United  States 
held  otherwise,  and  reaffirmed  the  oft-repeated  doctrine  that  a 
duty  being  imposed  by  the  laws  or  the  Constitution  on  the  exe- 
cutive department,  all  the  necessary  powers  followed  as  of  course 
to  render  the  performance  of  the  duty  possible  and  effective. 
While  there  is  no  express  statute  authorizing  the  appointment 
of  a  marshal,  or  any  other  officer  for  the  purpose  indicated,  the 
general  obligation  imposed  upon  the  President  to  see  that  the 
laws  are  faithfully  executed,  and  the  means  placed  in  his  hands 
both  by  law  and  the  Constitution  to  do  this,  impose  upon  him 
the  duty  of  protecting  judges  from  assault  at  all  hazards  when 
there  is  just  reason  to  believe  that  they  are  in  personal  dan- 
ger. No  express  statute  for  this  purpose  is  necessary.  All 
requisite  authority  flows  from  the  nature  of  the  duty  imposed. 

The  court  had  come  to  the  same  conclusion  in  other  cases. 2 
This  reasoning  is  as  applicable  when  we  seek  to  ascertain  the 
authority   for   instituting   summary   military   tribunals   under 


[35  U.  S.,  63-'5«     2.   11  Howard,  552  ;  104  U.  S.,  444  ;  125  U.  S-,  273- 


'80. 


420  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

martial  law  as  in  the  cases  decided  by  the  court.  And  it 
throws  around  officers  a  protecting  shield  when  in  the  discharge 
of  their  duties  that  must  add  greatly  to  their  intrepidity  and 
independence  of  spirit. 

A  great  mass  of  traditions  and  recognized  practices  cluster 
around,  attach  to,  and  form  a  most  important  element  of  well- 
regulated  armies,  which  are  known  as  the  customs  of  war. 
They  are  the  martial  legacy  of  centuries.  Many  of  them  go 
back  in  antiquity,  as  do  those  of  the  common  law,  to  a  period 
so  remote  "  that  the  memory  of  man  runneth  not  to  the  con- 
trary." '  This  it  is  which  gives  the  customs  of  war  weight  and 
authority  as  a  code.  It  is  true  that  some  military  customs  once 
held  in  esteem  in  civilized  armies  are  no  longer  observed, 
while  new  ones  have  slowly  crept  in.  These  changes  have  been 
the  result  of  extending  Christianity,  of  education,  and  advance- 
ment in  the  arts  and  sciences.  Precisely  similar  changes,  due 
to  similar  causes,  have  taken  and  are  taking  place  in  the  com- 
mon and  in  statute  law.  And  as  regards  the  term  '  military  com- 
mission '  to  designate  a  martial-law  tribunal,  while  the  designa- 
tion is  of  modern  origin,  the  tribunal  itself,  with  nature  and 
powers  essentially  unchanged,  has  existed  for  centuries. 

The  general  rule  is  that  authority  to  appoint  martial-law 
courts  and  approve  their  sentences  rests  only  with  the  com- 
manding general.  It  is  not  a  power  to  be  lightly  dealt  with. 
The  exigency  may  be  such  as  to  cause  the  power  to  be  trusted 
to  inferiors,  yet  when  it  is  reflected  that  these  tribunals  some- 
times may  have  jurisdiction  of  causes  involving  life,  the 
liberty  of  the  citizen  and  his  entire  property,  the  gravity  of  the 
responsibility  thus  imposed  becomes  apparent — a  responsibility 
which  never  should  be  placed  in  subordinate  hands  except  upon 
occasions  of  extreme  and  pressing  necessity.  This  was  the  rule 
generally  adopted  by  both  the  Federal  and  Confederate  services 
during  the  civil  war.  It  is  in  consonance  not  only  with  mili- 
tary practices  but  principles  of  justice.  It  has  commended 
itself  to  the  approbation  of  the  military  profession,  and  is  illus- 
trated in  the  customs  of  the  armies  of  all  civilized  nations  when 
called  upon  to  enforce  martial  law  within  the  limits  of  their 
own  territory.3 

i.   i  Blackstone,  76.  2.  4  Wallace,  p.  13. 


MARTIAL-LAW    TRIBUNALS.  42 1 

Martial-law  tribunals  legally  can  not  oust  courts-martial  of 
jurisdiction  conferred  by  the  Articles  of  War,  nor  can  they  as- 
sume concurrent  jurisdiction  in  such  cases.  If  martial  law  be 
the  result  of  legislative  enactment,  the  offences  which  properly 
can  be  brought  before  military  courts  may  be  set  forth  in  and 
limited  by  the  statute.  But  here  again  only  the  general  pur- 
pose may  be  stated,  and  the  details  be  left  to  be  filled  in  by  the 
military  commander.  If  the  authority,  legislative  or  executive, 
which  institutes  martial  law  reserves  causes  for  trial  by  the 
ordinary  civil  courts,  the  military  would  to  this  extent  be  de- 
barred from  assuming  jurisdiction.  There  was  scarcely  one 
instance  of  the  enforcement  of  martial  law  either  north  or  south 
during  the  civil  war — and  the  instances  were  many — which  did 
not  illustrate  these  principles.  As  was  said  in  a  case  then  aris- 
ing, "  military  commissions,  as  a  rule,  should  be  resorted  to  for 
cases  which  can  not  be  tried  by  courts-martial  or  by  a  proper 
civil  tribunal.  They  are,  in  other  words,  tribunals  of  necessity, 
organized  for  the  investigation  and  punishment  of  offences 
which  would  otherwise  go  unpunished."  l 

The  jurisdiction  exercised  by  these  tribunals  is  determined  by 
custom  modified,  possibly,  either  by  statute  or  the  orders  of 
military  superiors.  In  this  respect  they  are  on  the  same  foot- 
ing with  civil  courts.  With  respect  to  the  latter  it  is  a  well- 
recognized  principle  that  those  originating  in  the  common  law 
have  a  jurisdiction  which  is  regulated  by  the  common  law, 
until  some  statute  shall  change  their  established  principles  ; 
but  civil  courts  which  originate  by  written  law,  and  whose  juris- 
diction is  defined  by  written  law,  can  not  transcend  that  juris- 
tion.2  Nor  is  there  perceived  any  ground  upon  which  can  be 
based  a  well-founded  claim  that  the  decisions  of  martial-law 
tribunals,  proceeding  within  the  sphere  of  their  jurisdiction,  are 
less  determinate  in  character  than  are  those  of  the  ordinary 
courts-martial.  Regarding  the  latter  L,ord  Campbell  has  said  : 
"The  court-martial  having  had  jurisdiction  of  the  person  and 
the  case,  its  proceedings  can  not  be  collaterally  impeached  for 
any  mere  error  or  irregularity,  if  there  be  such,  committed 
within  the  sphere  of  its  authority.  Its  judgments,  when  ap- 
proved as  required,  rest  on  the  same  basis,  and  are  surrounded 

1.  R.  R.  S.,  1,  vol.  8,  p.  822.  2.  4  Cranch,  93. 


422  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

by  the  same  considerations  which  give  conclusiveness  to  the 
judgments  of  other  legal  tribunals,  including  as  well  the  lowest 
as  the  highest  under  like  circumstances."  1 

No  reason  is  seen  why  the  principles  of  responsibility  attach- 
ing to  those  who  sit  on  courts-martial  should  not  apply  to 
members  of  martial-law  tribunals.  The  latter  equally  with 
courts-martial  are  of  limited  and  special  jurisdiction.  Within 
the  martial-law  district  these  two  classes  of  courts  may  sit  side 
by  side,  each  taking  cognizance  of  appropriate  subjects-matter  of 
adjudication.  The  members  of  one  class  of  these  tribunals  may 
under  these  circumstances  even  drop  the  official  habiliments  of 
one  and  take  up  those  of  the  other  with  no  formality  except  the 
reading  an  order  from  superior  military  authority.  True  it  is 
that  the  court-martial  is  a  tribunal  of  both  peace  and  war, 
while  the  martial-law  tribunal  may  be  more  nearly  character- 
ized as  a  war-code  tribunal  only.  Yet  as  the  latter  determines 
causes  within  friendly  territory  alone,  where,  except  for  the 
disturbances  which  called  forth  martial  law,  the  ordinary  civil 
courts  would  have  complete  jurisdiction,  it  is  not  believed  that 
its  members  successfully  can  claim  immunity  from  responsibility 
upon  any  broader  principle  than  can  the  members  of  a  court- 
martial.  There  is  this  in  favor  of  the  members  of  the  martial- 
law  court :  they  act  under  great  difficulties,  dealing  with  per- 
sons in  a  manner  and  with  offences  which  in  their  nature  may 
be  unknown  to  ordinary  times.  They  sit  in  judgment  because 
of  an  imperious  necessity  ;  their  conduct  amidst  such  surround- 
ings is  entitled  to  be  viewed  with  the  greatest  possible  consid- 
eration ;  and  experience  has  shown  that  where  honesty  and 
fair  dealing  evidently  characterized  their  proceedings,  even 
although  jurisdiction  may  be  matter  of  doubt,  both  judges  and 
juries  have  been  inclined  to  give  due  weight  to  every  circum- 
stance both  in  justification  and  extenuation  of  their  actions. 

Following  the  analogies  of  ordinary  criminal  courts,  it  has 
been  held  by  some  that  martial-law  tribunals  can  take  cognizance 
only  of  causes  arising  within  the  particular  martial-law  district 
where  the  tribunal  sits.  It  is  questionable  if  this  is  the  true 
doctrine.  In  the  first  place  all  such  analogies  are  forced  and  un- 
natural.    The  civil  is  the  court  of  peace  ;  the  martial-law  tri- 

i.  Lives  of  the  Chief  Justices,  v.  3,  p.  91. 


MARTIAL-LAW    TRIBUNALS.  423 

bunal  that  of  great  disturbance  or  war.  The  one  is  established 
by  law,  either  statutory  or  common  ;  its  procedure  is  regulated 
by  known  rules  ;  its  jurisdiction  has  defined  territorial  limits  ; 
the  causes  it  takes  cognizance  of  are  well  known.  The  other, 
with  rare  exceptions,  is  called  into  being  by  a  military  order  ; 
its  procedure  is  regulated  by  the  customs  which,  though  well 
understood  in  their  general  bearing,  are  of  variable  applica- 
tion ;  the  causes  it  is  to  determine  are  to  a  great  extent  known 
only  to  the  anomalous  condition  of  martial  law  ;  why  then 
should  the  rules  of  territorial  limits  as  to  jurisdiction  be  the 
same  ?  Courts-martial  are  not  so  bound.  They  take  cog- 
nizance of  causes  wherever  they  may  have  arisen,  if  the  par- 
ties can  be  brought  into  the  court's  presence.  Even  if  the  of- 
fence happen  in  foreign  lands  the  transgressor,  if  subject  to 
the  Articles  of  War,  may  be  brought  to  account  for  it  here  be- 
fore a  court-martial.  This  has  occurred  time  and  again  on  our 
Mexican  border. 

Under  section  1343,  Revised  Statutes,  all  persons  who,  in 
times  of  war  or  rebellion  against  the  supreme  authority  of  the 
United  States,  shall  be  found  lurking  as  spies  in  or  around  the 
posts  or  encampments  of  the  armies  or  elsewhere  are  subject  to 
trial  before  a  military  commission.  Let  us  suppose  that  there 
has  arisen  an  extensive  rebellion  against  Federal  authority. 
After  the  experience  of  a  century  this  is  not  a  violent  suppo- 
sition. As  a  result  of  this  state  of  affairs  it  may  happen  that 
martial  law  exists  at  various  places — not  contiguous.  A  person 
is  arrested  in  one  district  for  having  lurked  as  a  spy  about  the 
military  forces  in  another  and  perhaps  far-distant  district.  The 
evidence  against  him  is  complete  at  the  spot  where  arrested, 
and  is  to  be  furnished  by  the  very  soldiers  who  now  have  him 
in  custody.  Is  it  to  be  supposed  that  he  will  be  removed  back 
to  the  vicinity  of  his  crime  for  trial,  when  that  trial  can  be  so 
much  more  expeditiously  conducted  at  the  very  place  where 
he  was  taken  into  custody  ?  It  is  apprehended  that  this  would 
hardly  be  done.  If  the  spy,  when  arraigned,  interposed  a 
plea  to  the  jurisdiction,  claiming  a  right  to  have  his  case  de- 
termined at  the  vicinage  where  the  alleged  crime  was  per- 
petrated, would  the  plea  be  sustained  because  of  any  supposed 
analogy  existing  between  the  rules  of  procedure  of  martial 
law  and  of  ordinary  criminal  courts  ?     Yet  unquestionably  if  it 


424  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

were  attempted  to  render  him  amenable  before  the  latter  his 
objection  would  be  well  taken.  The  plea  as  a  bar  to  trial  by 
the  military  would  hardly  be  sustained.  There  is  no  good 
reason  why  it  should,  and  many  why  it  should  not  be.  Prompt- 
ness of  action  with  a  determination  to  do  substantial  justice  as 
nearly  as  circumstances  will  permit  is  the  rule  of  the  military 
tribunal.  The  delay  resulting  from  carrying  both  criminal  and 
witnesses  back  to  the  very  scene  of  the  crime  would  wholly 
defeat  the  fundamental  idea  of  promptness  so  essential  on  such 
occasions.  It  would  be  useless  trouble,  because,  even  if  the 
criminal  were  thus  removed,  the  military  court  would  not  be 
bound  either  as  to  rules  of  procedure  or  evidence  as  would  a 
local  criminal  court  proceeding  in  a  case  regularly  before  it.  It 
might  be  impracticable  thus  to  carry  him  back,  as  if  the  neigh- 
borhood of  the  crime  were  now  held  by  the  rebels.  Is  it  to  be 
supposed  in  such  case  that  trial  either  is  not  to  proceed  at  all, 
or  is  to  be  deferred  until  the  district  has  been  reduced  into  the 
possession  of  the  legitimate  government  ?  This,  it  is  believed, 
would  not  be  done.  In  truth,  any  attempt  to  shackle  tribunals 
sitting  under  martial  law  by  criminal  court  rules  and  limitations 
as  to  jurisdiction  would  defeat  the  object  for  which  they  are 
instituted.  The  former  essay  to  mete  out  substantial  justice 
amidst  great  social  disorder  ;  the  latter,  in  times  of  peace,  dis- 
penses an  exact  justice  so  nearly  as  human  frailties  render  pos- 
sible. The  former  are  often  compelled  to  proceed  largely  upon 
appearances;  the  latter  seeks  to  interpose  a  protecting  wall 
against  the  errors  which  appearances  often  give  rise  to  by 
requiring  consistent  and  conclusive  proof  of  every  essential 
element  of  the  crime.  The  former  are  characterized  by  the  ner- 
vous energy  of  executive,  the  latter  by  the  calm  deliberation  of 
judicial  action.  Each  is  best  adapted  to  the  time,  place,  and 
circumstances  which  environ  and  call  it  into  being.  Both  have 
proved  essential  to  well-regulated,  stable  government ;  to  omit 
either,  impairs  the  strength  or  the  benignity  of  the  system  ;  to 
devolve  upon  one  the  duties  rightly  appertaining  to  the  other, 
leads  to  confusion  in  the  exercise  of  authority  and  invites  that 
very  revolution  which  renders  military  tribunals  necessary  ; 
while  to  impose  upon  either  restrictions  as  to  jurisdiction  which 
peculiarly  appertains  to  the  other,  regardless  of  the  essential 
differences  of  their  constitution  and  the  purposes  of  their  being, 
would  fatally  impair  its  efficiency. 


MARTIAL-LAW   TRIBUNALS.  425 

These  must  be  the  principles  by  which  the  question  of  terri- 
torial jurisdiction  of  tribunals  under  martial  law  is  to  be  tested. 
Otherwise,  the  very  object  for  which  they  are  instituted  might 
totally  be  defeated.  Would,  for  instance,  he  who  had  rendered 
himself  amenable  to  trial  in  Norfolk,  Va.,  while  that  city  was 
under  martial  law,  but  had  escaped  to  be  afterwards  apprehended 
in  East  Tennessee,  also  under  martial  law,  have  been  permitted 
to  plead  to  the  jurisdiction  of  the  commission  sitting  in  judgment 
upon  his  case  in  the  latter  district — especially  in  view  of  the 
fact  that  not  long  after  martial  law  was  proclaimed  at  Norfolk, 
that  city  and  the  adjacent  country  was  occupied  and  permanently 
held  by  the  Union  forces  ?  Again,  both  the  State  of  Kentucky 
and  large  portions  of  the  State  of  Missouri  were  under  martial 
law  during  the  same  period  of  the  civil  war,  the  result  of  vast 
territorial  insurrection.  Is  it  to  be  supposed  that  one  who  had 
fled  from  martial-law  justice  in  Kentucky  and  was  apprehended 
in  the  martial-law  district  of  Missouri,  wdiere  also  those  cogni- 
zant of  the  circumstances  of  his  alleged  offence  had  been  trans- 
ferred, would  be  sent  to  the  former  for  trial  by  military  com- 
mission ?  It  is  doubtful  if  the  accused  would  think  of  interposing 
a  plea  to  jurisdiction  on  territorial  grounds,  and  it  is  not  doubted 
that,  if  he  did,  it  would  promptly  be  overruled. 

So  as  to  the  time  when  the  offence  was  committed.  If  the 
commission  have  jurisdiction  of  the  person  and  the  offence  it 
may  proceed,  if  the  offence  were  committed  within  a  martial- 
law  district,  even  if  it  were  of  a  date  anterior  to  the  proclama- 
tion of  martial  law  at  the  place  of  the  trial.  A  different  rule 
would  give  immunity  to  crime  at  the  most  critical  periods.  To 
be  safe  the  schemer  against  that  military  rule  which  it  has  been 
found  necessary  to  establish  over  his  district  has  only  to  remain 
concealed  from  view  until  the  regular  government  is  re-estab- 
lished at  that  point.  Martial  law  may  indeed  be  existing  else- 
where, under  the  same  general  authority  after  such  re-establish- 
ment ;  but  if  it  were  declared  of  a  date  subsequent  to  the  of- 
fence, the  culprit,  if  this  rule  were  true,  would  go  free.  Ap- 
ply such  a  principle  of  immunity  to  the  cases  before  mentioned 
of  martial  law  at  Norfolk,  in  East  Tennessee,  Kentucky,  and 
Missouri,  and  observe  to  what  results  it  might  lead.  Martial 
rule  would  lose  much  of  its  efficacy.  But  if  he  who  under  such 
circumstances  contemplates  offending  against  the  dignity  and 


426  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

authority  of  the  powers  then  in  being,  knows  that  he  may  else- 
where and  at  some  future  period  be  brought  to  a  reckoning 
therefor  before  summary  military  tribunals,  the  fact  might  have 
a  salutary  and  deterrent  effect. 

Military  tribunals,  under  martial-law  authority  and  in  ab- 
sence of  statutory  regulation,  should  observe  as  nearly  as  may 
be  consistently  with  their  purpose,  the  rules  of  procedure  of 
courts-martial.  This,  however,  is  not  obligatory.  But  the 
rule  is  based  upon  the  consideration  that  both  species  of  tribu- 
nals are  in  most  respects  of  the  same  summary  character  ;  that 
the  object  in  each  is  rather  to  arrive  at  substantial  than  at  a 
nicely-discriminating  measure  of  justice  ;  and  that  the  proce- 
dure of  courts-martial  are  well  understood  by  those  who  with 
rare  exceptions  compose  martial-law  courts.  The  customs  of 
courts-martial  are  the  teachings  of  ages.  They  have  been 
transmitted  from  one  generation  of  soldiers  to  another.  While 
subject  to  modification,  all  such  changes  are  watched  with  a 
jealous  eye  by  military  men.  This  is  because  these  customs 
are  well  adapted  to  the  purpose  of  securing  material  justice, 
being  simple  in  character  and  in  great  degree  devoid  of  the 
technicalities  which  characterize  the  proceedings  of  ordinary 
courts  ;  and,  besides,  experience  has  demonstrated  that  changes 
unless  carefully  made  are  more  apt  to  embarrass  than  to  facili- 
tate and  render  certain  the  administration  of  justice  through 
military  tribunals. 

In  the  exercise  of  the  martial-law  power  a  discretion  in  the 
choice  of  means  is  necessarily  allowed.  It  is  essential  that  the 
means  be  proper  for  carrying  into  execution  the  power  con- 
ferred, and  that  no  act  be  done  and  no  authority  exercised 
which  is  either  prohibited  by  statute  or  unsanctioned  by  military 
customs.  Should  the  conduct  of  those  who  compose  martial- 
law  tribunals  become  matter  of  judicial  determination  subse- 
quently before  the  civil  courts,  those  courts  will  give  great 
weight  to  the  opinions  of  the  officers  as  to  what  the  customs  of 
war  in  any  case  justify  and  render  necessary.  This  is  not  a 
new  principle.  It  accords  with  the  practice  of  civil  courts  when 
dealing  with  questions  which  have  been  passed  upon  by  the 
Executive  Departments,  in  a  particular  manner,  unchallenged 
for   a   considerable   period.1       Here   the  judiciary    have   often 

i.  Cooley,  Gen.  Principle,  Const.  Law,  p.  139. 


MARTIAL-LAW    TRIBUNALS.  427 

yielded  to  executive  rulings  when  the  question  to  be  deter- 
mined was  the  correctness  of  the  practical  construction  of  the 
law  by  the  executive  departments  in  the  performance  of  their 
duties. 

After  the  Jamaica  rebellion  of  1865  a  royal  commission  was 
sent  out  from  England  to  investigate  and  report  upon  all  the 
facts  in  connection  with  the  execution  of  martial  law.  The 
subject  of  the  military  courts  which  had  been  appointed  under 
the  martial-law  power  received  exhaustive  investigation.  The 
commission  was  composed  of  eminent  professional  men — mili- 
tary and  legal — well  qualified  to  pass  upon  all  questions  in- 
volved. Referring  to  the  martial-law  courts,  numerous  of 
which  had  been  convened,  and  which  had  in  many  instances 
adjudged  the  death  penalty  for  crime,  the  commission  remarked 
that  in  fact  they  were  committees  rather  than  courts  ;  and 
while  they  proceeded  in  their  deliberations  upon  principles  of 
natural  justice,  yet  they  disposed  in  a  summary  manner  of  all 
cases  brought  before  them,  even  those  involving  the  punish- 
ment of  death. 

The  '  committees  '  here  referred  to  are  the  '  military  commis- 
sions '  of  the  United  States  and  other  nations.  And  while  not 
bound  by  the  Articles  of  War,  from  which,  in  the  absence  of 
statutory  provisions,  they  derived  no  authority,  yet  they  were 
duly  constituted  martial-law  tribunals.  Their  members  were 
sworn  to  the  faithful  performance  of  their  duty;  they  heard 
evidence,  deliberated  thereon,  and  determined  causes.  Their 
origin  was  military  ;  and  in  absence  of  instructions  from  the 
convening  authority  or  statute,  it  was  both  natural  and  proper 
that  in  conducting  their  proceedings  they  should  observe  the 
rules  of  courts-martial  practice.1 

In  regard  to  martial-law  tribunals  the  remark  of  Lord 
Loughborough  that  "it  would  be  extremely  absurd  to  expect 
the  same  precision  in  a  charge  brought  before  a  court-martial 
as  is  required  to  support  a  conviction  before  a  justice  of  the 
peace,"  finds  peculiar  emphasis.'2  So  as  to  the  penalty  to  be 
awarded.  The  situation  renders  it  imperative  that  martial-law 
tribunals  should  be  given  great  freedom   of   action.      In  the 

1.  Finlason,  Martial  Law,  preface,  pp.  16,  36.  text,  p.  49  ;  Clode,  Mili- 
tary and  Martial  Law,  chap.  XL,  sec.  6.  2.  Grant  v.  Gould, 
2  H.  Blackstoue,  69;  In  re  Poe,  Barn,  and  Adolph.  Repts.,  vol.  5. 


428  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

case  of  the  King  v.  John  Suddis  the  important  point  was  decided 
that  courts-martial,  sitting  under  the  Mutiny  Act  and  the 
Articles  of  War,  are  not  bound,  in  awarding  sentences,  to 
adhere  to  or  observe  the  limits  of  punishment  permissible  for 
the  same  offences  by  ordinary  criminal  courts  administering 
the  laws  of  England.1  Such  also  is  the  common  practice  in  the 
United  States  ;  even  the  97th  Article  of  War,  which  authorizes 
confinement  in  the  penitentiary,  does  not  limit  the  punishment 
to  what,  in  analogous  cases,  criminal  courts  might  inflict. 
Every  consideration  which  would  lead  to  conceding  such  free- 
dom of  action  to  courts-martial  under  statutory  authority,  ap- 
plies yet  more  strongly  to  military  commissions  under  martial 
law.  This  must  be  so  in  the  nature  of  things.  The  effect  of 
the  lawful  declaration  of  that  law  is  to  suspend  and  exclude,  so 
far  as  the  power  inaugurating  it  may  determine  to  be  necessary, 
the  ordinary  laws  of  this  land.  It  follows  that  the  punishable 
offences  need  not  be  common  or  statutory  law  offences,  still  less 
that  the  penalties  inflicted  should  be  those  only  which,  in 
ordinary  times,  are  suited  to  these  offences.  2 

It  is  a  principle  that  the  accused  always  must  have  a  fair  trial, 
taking  into  consideration  the  circumstances  surrounding  each 
case.  Keeping  this  in  view,  military  commissions  may  so  vary 
their  procedure  as  to  adapt  it  to  any  situation,  and  may  extend 
their  powers  to  any  necessary  degree,  not  only  to  punish  offenders, 
but  by  the  moral  effect  of  their  proceedings  deter  others  from 
indulging  in  forbidden  acts  at  these  unpropitious  moments  when 
the  bonds  of  government  and  society  are  alreadly  loosened. 
The  military  commander  decides  upon  the  character  of  the  mili- 
tary tribunal  which  is  suited  to  the  occasion,  unless,  as  rarely 
happens,  this  is  settled  by  statute,  and  his  decision  is  final.3 
Nor  have  well-affected  loyal  civilians  anything  to  fear  from 
this. 

There  could  not  exist  a  more  erroneous  apprehension  than 
that  military  men  are  anxious  to  exercise  martial-law  powers 
over  the  civil  community.  There  is  connected  with  it  neither 
glory  nor  even  professional  credit  for  them,  and  the  duty  in- 
volves many  weighty  responsibilities.     With  rare  exceptions, 

1.  1  East  Reports,  p.  306  ;  Finlasou,  M.  L.,  p.  104. 

2.  Finlasou,  Martial  law,  p.  ior.        3.   Fiulason,  Mar.  Law,  preface,  p.  16. 


MARTIAL-LAW   TRIBUNALS.  429 

arising  out  of  the  peculiar  circumstances,  military  men  seek  to 
support  the  civil  authorities  rather  than  act  alone  and  inde- 
pendently of  them.  It  is  true  that  many  civilians  think  other- 
wise. They  look  with  apprehension  at  the  appearance  of  the 
military  upon  the  scene  as  the  signal  for  all  law  to  be  trampled 
under  foot.  Generally  this  will  be  found  to  be  the  effect  of 
prejudice.  If  they  will  take  counsel  of  the  facts  of  modern  his- 
tory in  free  governments  rather  than  of  groundless  fears,  they 
will  realize  that  military  officers  assume  the  responsibilities  o 
martial  law  but  reluctantly,  after  the  civil  authorities  have  sig- 
nally failed  to  meet  the  ends  of  government,  and  it  becomes 
necessary  to  have  some  powerful  and  sufficient  substitute  to 
maintain  order  in  the  distracted  district. 

Except  in  the  presence  of  an  enemy  upon  the  theatre  of  war- 
like operations,  or  in  the  immediate  vicinity  thereof,  the  mili- 
tary do  not  take  the  first  steps  towards  instituting  martial  law. 
That  is  done  by  the  civil  officers  making  an  appeal  for  protec- 
tion and  assistance,  or  even  the  temporary  assumption  of  all 
authority  by  the  military.  Not  only  do  soldiers  acknowledge 
the  proper  subordination  of  military  to  civil  authorities  as 
being  a  cherished  principle  of  our  governmental  polity,  but  they 
take  pride  in  and  are  ever  read)'  to  maintain  it. 

The  danger  is  not  serious  that  those  who  thus  have  a  just 
appreciation  of  the  true  relation  of  civil  and  military  authority, 
and  who  with  arms  in  their  hands  stand  ready  to  uphold  the 
supremacy  of  the  former  if  necessary,  will  often  be  found  seek- 
ing to  overthrow  established  civil  institutions,  and  rear  upon 
the  ruins  for  never  so  brief  a  period  the  rule  of  military  power. 
When,  therefore,  these  officers,  as  members  of  military  tribunals, 
have  placed  in  their  keeping,  in  the  regular  course  of  their  duty 
under  martial  law,  the  lives,  liberty,  and  property  of  their  fel- 
low-citizens, it  scarcely  need  be  apprehended  that  they  wantonly 
will  abuse  their  temporary  authority. 

Regarding  rules  of  evidence  which  should  be  observed  in 
their  proceedings,  it  may  be  remarked  that  martial-law  tribunals 
are  not  to  be  bound  either  by  common-law  rules  or  those  which 
ordinarily  govern  in  courts-martial.  Here,  however,  as  in 
their  procedure,  the  rules  which  are  observed  by  courts-martial 
may  well  be  taken  as  a  guide.  The  reason  why  common-law 
rules  of  evidence  do  not  bind  martial-law  tribunals  is  not  that 


43°  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

they  are  not,  under  ordinary  circumstances,  well  adapted  to  the 
development  of  truth.  They  are  so  adapted  ;  the  wisdom  of 
generations  has  built  them  up  as  a  strong  protection  to  the 
accused.  Yet  the  extreme  nicety  of  the  distinctions  which 
characterize  those  rules,  and  which,  as  a  protection  to  inno- 
cence, is  their  chief  ornament,  renders  them  inapplicable  for 
courts  proceeding  by  more  summary  methods. 

As  a  general  thing  military  men  are  but  imperfectly  versed 
in  the  rules  of  evidence  before  criminal  courts.  Familiarity 
with  these  requires  much  study  and  practice.  It  is  impossible 
for  them  to  acquire  more  than  a  general  knowledge  of  their 
fundamental  principles.  Otherwise  it  were  necessary  for  of- 
ficers to  renounce  their  profession  as  soldiers  and  become  law- 
yers, Sad,  indeed,  will  be  the  day  for  any  military  service 
when  such  ideas  predominate.  While  members  of  military  tri- 
bunals engage  in  legal  disputations  the  time  for  action  passes 
and  discipline  is  sacrificed.  Thenceforward  in  that  country  a 
permanent  military  establishment  is  a  useless  expense.  It 
should  be  abolished,  and  the  nation  depend  for  both  defence 
and  offence  upon  the  armed  levies  drawn  out  from  among  its 
citizens  as  the  exigencies  of  war  require.  Fortunately  the 
view  that  officers  are  to  be  lawyers  first  and  soldiers  after- 
wards does  not  extensively  prevail.  The  results  which  have 
followed  occasional  attempts  to  carry  this  perverse  idea  into 
practice  have  but  the  more  strongly  demonstrated  its  inherent 
viciousness  and  its  demoralizing  effect  upon  the  military  sys- 
tem. Military  courts  endeavor  to  strike  in  the  most  direct 
way  at  the  merits  of  the  case  before  them.  Understanding 
these,  they  are  then  prepared  to  deal  out  that  measure  of  justice 
which  the  case  demands.  And  it  is  a  fact  which  candid  men 
admit  that  they  quite  as  often  succeed  as  their  more  learned 
coadjutors  of  the  civil  branch  of  the  judiciary.  A  court-mar- 
tial is  not  a  pleasant  tribunal  for  a  guilty  man  to  face,  no  mat- 
ter how  ably  he  may  be  defended  ;  whereas,  on  the  other  hand, 
the  innocent  may  with  confidence  rely  upon  its  verdict,  how- 
ever ably  the  prosecution  be  conducted.  If  there  have  been 
exceptions,  their  conspicuousness  but  emphasizes  the  generality 
of  the  rule. 

It  being  true  that  only  the  plainest,  most  easily  understood, 
and  generally  applicable  of  the  rules  of  evidence  are  followed 
by  courts-martial  sitting  under  the  Articles  of  War,  and  then 


MARTIAL-LAW   TRIBUNALS.  43 1 

not  as  of  binding  force  but  simply  as  directory  of  their  proceed- 
ings for  the  sake  of  regularity  and  the  dispatch  of  business,  so 
much  the  more  is  it  necessary  that  this  principle  be  observed  in 
the  proceedings  of  martial-law  tribunals.1  The  former  act 
under  a  well-established  code,  either  statutory  or  the  common 
law  of  the  army,  and  has  therefore  a  feature  of  permanency 
and  stability  which  might  be  held  as  to  them  to  render  rules  of 
evidence  of  more  binding  efficacy  ;  the  latter,  being  the  tribu- 
nals of  the  great  law  of  necessity,  must  in  the  nature  of  things 
adopt  for  their  own  guidance  whatever  rules  will  elicit  with 
greatest  facility  and  certainty  the  highest  degree  of  truth  that 
the  extraordinary  occasion  will  permit. 

Sneh,  likewise,  are  the  views  of  military  authorities  in  other 
sendees.  Mr.  Clode,  after  remarking  that  martial  law  will 
sometimes  be  established,  thereby  rendering  some  substitute  for 
the  regular  courts  of  law  a  necessity,  observes  regarding  the 
martial-law  tribunal  :  "It  should  proceed  upon  charges  based 
on  the  known  criminal  law,  and  upon  sworn  evidence  given  in 
the  presence  of  the  accused.  What  he  has  to  say  in  his  defence 
should  be  patiently  heard,  and  a  record  complete,  so  far  as  cir- 
cumstances will  permit,  should  be  made  of  all  the  proceedings. 
The  analogy  of  the  military  code  is  to  be  followed,  not  as  binding, 
but  as  director)',  for  the  jurisdiction  of  the  court  is  to  be  upheld, 
not  by  the  authority  of  the  Mutiny  Act  but  by  the  supreme 
power  of  the  executive  government  to  administer  justice  at  all 
times."  2 

The  rules  of  procedure  and  of  evidence  of  martial-law  tribu- 
nals may  seem  crude  when  judged  by  the  common-law  standard. 
But  it  must  be  remembered  that  these  tribunals  are  convened 
only  when  ordinary  methods  have  ceased  to  be  applicable,  and 
therefore  that  which  in  the  normal  condition  of  society  would 
be  irregular  becomes  regular  and  highly  commendable.  By 
eschewing  wherever  they  find  it  expedient  to  do  so  common-law 
court  processes,  particularly  in  regard  to  matters  of  proof  of 
alleged  offences,  martial-law  tribunals  are  enabled  to  deal  out 
promptly,  effectively,  and  in  a  manner  suited  to  the  times  in 
which  they  hold  sway,  a  crude  it  may  be,  yet  an  even-handed 

i.   Finlason,  Commentaries,  Martial  Law,  p  49. 

2.  Mil.  and  Mar.  Law,  p.  169  ;  and  see  Fiulasou,  Martial  Law,  p.  359. 


432  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

measure  of  justice  well  suited  to  the  protection  of  the  lives, 
liberty,  and  property  of  the  citizens  and  yet  uphold  and  vindi- 
cate the  power  of  the  law. 

Upon  this  branch  of  our  subject,  however,  it  may  be  said  that 
only  the  gravest  occasions  will  warrant  resort  to  martial-law 
tribunals.  Generally  in  the  enforcement  of  martial  law  the 
military  will  content  themselves  simply  with  preserving  order 
and  defending  their  dignity  and  authority  from  attack,  deliver- 
ing civilians  who  may  be  arrested  over  to  civil  officers  for  trial 
when  the  courts  are  reinstated.  Still,  as  instanced  in  Ireland 
in  1798  and  1803,  in  Jamaica  in  1865,  and  in  our  own  country 
during  the  civil  war  and  the  reconstruction  periods  immediately 
following,  there  may  and  do  arise  occasions  when  such  tribu- 
nals justly  may  be  invoked  to  supply  the  energy  and  certainty 
in  the  administration  of  penal  affairs  which  have  become  nec- 
essary, and  which  can  not  be  furnished  by  the  ordinary  judicial 
system. 


RESPONSIBILITY   OF  COMMANDERS — MARTIAL  LAW.         433 


CHAPTER  XL 

RESPONSIBILITY   OF   COMMANDERS — MARTIAL   LAW. 

Coming  now  to  the  question  of  responsibility  of  officers 
whose  duty  it  is  to  enforce  martial  law  :  First,  the  necessity 
for  its  enforcement,  if  questioned  in  a  court  of  law,  must  be 
made  out.  This  is  a  circumstance  to  be  determined  by  the  jury 
from  all  the  facts  in  the  case  under  instructions  as  to  the  law 
from  the  court.  In  this  work  the  necessity  is  assumed  to  have 
been  established.  The  question  then  recurs  as  to  the  rule  of 
responsibility  governing  those  who  enforce  the  law. 

It  is  necessary  to  remember  that  these  officials  are  not  mere 
intruders  in  the  domain  of  authority  ;  nor  are  the  questions 
arising  those  between  parties  as  private  individuals.  The  rule 
in  such  cases  is  that  so  long  as  the  officer  does  not  transcend 
the  limits  of  his  jurisdiction  in  the  exercise  of  discretionary 
authority,  he  can  not  be  rendered  liable  unless  it  be  shown  that 
he  maliciously  abused  the  power  confided  to  him.1  Under  these 
circumstances,  if  a  military  commander  honestly  exercises  his 
judgment,  and  has  reasonable  grounds  for  believing  that  the 
necessity  exists  for  enforcing  martial  law,  he  can  not  be  held 
criminally  liable  for  what  is  done  under  it  in  accordance  with 
military  usage.2 

"  While  an  officer  acts  within  the  limits  of  that  discretion," 
said  the  United  States  Supreme  Court,  ' '  the  same  law  which 
gives  it  to  him  will  protect  him  in  the  exercise  of  it.  But  for 
acts  beyond  his  jurisdiction,  or  attended  by  circumstances  of 
excessive  severity,  arising  from  ill-will,  a  depraved  disposition, 
or  vindictive  feeling,  he  can  claim  no  exemption,  and  should 
be  allowed  none  under  color  of  his  office,  however  elevated  or 
however  humble  the  victim.  When  not  offending  under  such 
circumstances,  his  justification  does  not  rest  on  the  general 
ground  of  vindicating  a  trespass  in  private  life,    and  between 

1.  7  Howard,  p.  130  ;  12  Howard,  p.  404. 

2.  Finlason,  Commentaries  on  Martial  Law,  p.  50. 


434  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

those  not  acting  officially  and  not  with  a  discretion,  because, 
then,  acts  of  violence  being  first  proved,  the  person  using  them 
must  go  forward  next  and  show  the  moderation  or  justification 
of  the  blows  used.  The  chief  mistake  below  was  looking  to 
such  cases  as  a  guide,  for  the  justification  rests  here  on  a  rule 
of  law  entirely  different,  though  well  settled,  and  is  that  the 
acts  of  a  public  officer  on  public  matters  within  his  jurisdiction, 
and  where  he  has  a  discretion,  are  to  be  presumed  legal  until 
shown  by  others  to  be  unjustifiable.  This,  too,  is  not  on  the 
principle  merely  that  innocence  and  doing  right  are  to  be  pre- 
sumed till  the  contrary  is  shown.  But  that  the  officer,  being 
intrusted  with  a  discretion  for  public  purposes,  is  not  to  be 
punished  for  the  exercise  of  it  unless  it  is  first  proved  against 
him,  either  that  he  exercised  the  power  confided  without  his 
jurisdiction,  or  in  a  manner  not  confided  to  him,  as  with  malice, 
cruelty,  or  willful  oppression,  or  in  the  words  of  L,ord  Mansfield, 
in  Wall  v.  McNamara,  that  he  exercised  it  as  if  the  heart  was 
wrong.  In  short,  it  is  not  enough  to  show  that  he  committed 
an  error  in  judgment,  but  it  must  have  been  a  malicious  and 
willful  error." 

This  case  arose  from  a  naval  officer,  Wilkes,  while  on  a  dis- 
tant, foreign  station,  having  inflicted  corporal  punishment  upon 
a  sailor,  Dinsman,  who,  after  their  return  to  the  United  States 
instituted  suit  against  the  officer,  resulting  in  verdict  for  plain- 
tiff. This  the  Supreme  Court  reversed,  holding  that  for  all 
that  appeared  on  the  record,  Captain  Wilkes  had  but  done  his 
duty.  The  opinion  is  replete  with  important  principles  affect- 
ing executive  officers  called  upon  to  exercise  their  judgments 
in  positions  of  responsibility. 

It  was  observed  in  the  opinion  that  Captain  Wilkes'  duties 
were  imposed  upon  him  as  a  public  officer,  and  required  him  to 
exercise  a  discretion  in  their  execution.  The  position  of  the 
officer  in  such  cases  becomes  quasi  judicial  and  is  not  minis- 
terial. It  is  well  settled  that  all  judicial  officers,  when  acting 
on  subjects  within  their  jurisdiction,  are  exempt  from  civil  pros- 
ecution for  their  acts.1  It  was  especially  proper  not  only  that  an 
officer  situated  like  Captain  Wilkes  be  invested  with  a  wide 

i.  ii  Johnson  (N.  Y.),  113  ;  Scott's  Digest,  p.  377  (d)  ;  11  Johnson  (N. 
Y.),  160. 


RESPONSIBILITY    OF    COMMANDERS — MARTIAL   LAW.         435 

discretion,  but  upheld  in  it  when  honestly  exercising  and  not 
transcending  it.  When  so  situated  an  officer's  reasons  for 
action  one  way  or  another  are  often  the  fruits  of  his  own  obser- 
vation, and  not  susceptible  of  technical  proof  on  his  part. 
No  review  of  his  decisions,  if  within  his  jurisdiction,  is  con- 
ferred by  law  on  either  courts  or  juries  or  subordinates. 

The  case  being  returned  and  again  coming  up  for  decision, 
the  Supreme  Court  remarked  that  the  whole  matter  turned 
upon  the  motive  which  induced  the  officer  to  inflict  the  punish- 
ment. This  question  was  one  exclusively  for  the  jury.  If  they 
believed,  from  the  whole  testimony,  that  the  defendant,  in  all 
the  acts  complained  of,  was  actuated  alone  by  an  upright 
intention  to  maintain  the  discipline  of  his  command  and  the 
interests  of  the  service  in  which  he  was  engaged,  he  was  not 
liable  in  damages.  If,  on  the  other  hand,  they  found  that  the 
punishment  was  in  any  manner  or  degree  increased  or  aggra- 
vated by  malice  or  vindictive  feeling  towards  the  plaintiff, 
Dinsman,  or  a  disposition  to  oppress  him,  then  he  was  entitled 
to  recover.1 

It  is  fortunate  that  there  exists  a  judicial  tribunal,  the  court 
of  last  resort,  imbued  with  a  just  appreciation  of  the  necessity 
for  sustaining  executive  officers  in  the  performance  of  their 
duties.  No  abler  exposition  of  the  principles  which  form  at 
once  their  guide  and  protection  while  so  engaged  is  anywhere 
to  be  found  than  in  the  opinions  cited. 

That  such  officers  must  be  supported  so  long  as  they  remain 
within  the  limits  of  their  authority,  will  appear  upon  even 
slight  consideration.  The  legislature  makes  the  laws  ;  the  ju- 
diciary, constitutionally,  pass  upon  them  ;  the  executive  en- 
forces them.  The  latter  it  is  which  conies  in  direct  contact 
with  the  people,  and  upholds  the  prestige  and  power  of  govern- 
ment. Impair  the  efficacy  of  the  executive  department  and  to 
that  extent  the  energies  of  government  are  paralyzed.  Neither 
a  legislature  nor  a  judiciary  is  at  every  instant  of  time  absolutely 
essential  to  government ;  in  times  of  great  peril  they  may  for 
the  time  be  swept  away,  but  no  government  could  exist  for  a 
moment  without  an  executive  branch.  Hence  the  importance 
of  having  a  clear  understanding  at  all  times  of  the  rights,  duties, 
and  obligations  of  its  officers. 

1.   12  Howard,  404. 


436  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

There  exists  no  difference  in  principle  as  to  the  rule  of  im- 
munity for  acts  of  military  officers  in  the  line  of  their  duty, 
whether  that  immunity  be  set  out  affirmatively  in  statute  or 
results  from  long-established  custom — the  common  law  of  the 
army. 

The  rules  of  official  responsibility  are  applicable  under  mar- 
tial law  as  elsewhere.  The  commander  can  not  evade  a  just 
liability  for  his  acts,  yet  upon  every  legal  and  equitable  principle 
he  is  entitled,  so  long  as  he  does  not  abuse  his  power,  to  every 
consideration  due  to  the  difficulties  of  his  situation.  Our  safe- 
guard against  the  misuse  of  power  will  not  be  found  in  deny- 
ing that  officers  may  act,  thus  depriving  ourselves  of  the  bene- 
fit of  that  power,  but  in  holding  them  to  a  strict  accountability.1 
After  martial  law  has  been  proclaimed  by  the  proper  authority, 
officers  engaged  in  the  military  service  may  lawfully  arrest 
any  one  whom  they  have  reasonable  grounds  to  believe  is 
engaged  in  insurrection  or  rebellion,  and  may  forcibly  enter 
and  search  premises  where  it  is  reasonable  to  suppose  that  such 
offenders  are  secreted.2 

Early  instances  of  military  commanders  of  United  States 
forces  being  held  liable  for  an  exercise  of  power  over  civilians 
even  in  face  of  the  enemy  are  not  wanting.  But  the  judicial 
determinations  in  these  cases  must  be  considered  as  having  been 
reversed  in  more  recent  times. 

Among  the  instances  growing  out  of  the  war  of  1812,  in  which 
the  power  of  officers  to  try  civilians  for  alleged  offences  against 
the  well-being  of  the  service  was  judicially  passed  upon,  two 
arising  in  Northern  New  York  are  especially  interesting.  The 
first  case  arose  from  the  circumstance  that  one  Shaw,  a  civilian, 
was  arrested  fifteen  miles  from  Sackett's  Harbor,  an  important 
military  station  on  the  lakes,  and  which  then  was  occupied  by 
the  American  army  operating  against  Canada.  He  was  sur- 
rendered into  the  custody  of  Smith,  the  commander  of  the  army 
there.  The  charges  alleged  against  Shaw  were  :  (1)  exciting 
an  insurrection  against  the  authority  of  the  United  States  ;  (2) 
violating  his  parole  ;  (3)  furnishing  the  enemy  with  necessa- 
ries ;  (4)  being  a  spy.     It  did  not  appear  that  the  conduct  of 

I.  Whiting,  War  Powers,  p.  170;  Gen.  Butler's  argument,  Ex  parte  Mil- 
ligan.  2.  7  Howard,  46. 


RESPONSIBILITY    OF   COMMANDERS — MARTIAL   LAW.         437 

the  military  commander  was  harsh  or  oppressive.  But  the  New 
York  Court  of  Appeals  before  which  the  case  finally  came  em- 
phasized the  fact  that  it  was  the  principle  involved  which 
rendered  it  important.  If  the  military  officer  were  justified  in 
doing  what  he  did,  the  court  did  not  see  but  that  every  citizen 
of  the  United  States  would,  in  time  of  war,  be  equally  exposed 
to  a  like  exercise  of  military  power.  Judgment,  which  in  the 
trial  below  had  gone  against  the  military  commander,  was 
therefore  affirmed. 

Regarding  this  case  it  may  be  observed,  however,  that  when 
Shaw  was  arrested  and  tried  by  court-martial,  the  56th,  57th, 
80th,  81st,  and  82d  of  the  Rules  and  Articles  of  War  were  in 
force.1  Article  56  made  punishable  by  death  or  otherwise,  as  a 
court-martial  might  direct,  the  offence  of  relieving  the  enemy  by 
money  and  victuals,  whoever  the  guilty  party.  Article  57  de- 
nounced the  same  penalty  against  whomsoever  should  be  con- 
victed of  holding  correspondence  with  the  enemy  or  giving  him 
intelligence.  The  terms  of  the  law,  which  remain  unchanged 
to  this  day,  are  comprehensive  ;  they  except  no  one.  It  never 
can  be  permitted  that  exceptions  should  be  made.  The  safety 
of  the  country  will  not  admit  of  it.  Yet  these  are  the  alleged 
offences  that  Shaw  was  court-martialed  for.  As  to  the  alleged 
offence  of  being  a  spy,  the  court  of  appeals  remarked  that  the 
court-martial  had  no  jurisdiction  of  a  civilian  arrested  as  a  spy  ; 
that  he  must  be  turned  over  to  the  civil  courts.  Is  this  true  ? 
If  so,  the  commander  is  left  powerless  against  those  persons 
who  approach  his  camp  under  the  guise  of  friendship,  and  then 
for  gold  sell  information  thus  acquired  to  the  enemy.  What 
was  the  object  of  using  the  term  '  whosoever '  unless  to  give 
courts-martial  cognizance  of  the  offences  specified,  no  matter 
who  might  be  the  offenders?  The  Continental  Congress  by 
resolution  of  October  8,  1777,  denounced  as  traitors  all  persons 
who  should  be  guilty  of  giving  intelligence  or  aid  to  the  enemy.2 
This,  too,  after  a  case  involving  the  trial  of  a  civilian  by  court- 
martial  for  holding  correspondence  with  the  enemy  had  been 
reported  to  and  considered  by  that  body.  Nor  was  General 
Washington  of  opinion  that  civilians  had  any  such  immunity 
from  court-martial  jurisdiction,  as  is  evidenced  by  the  trial  be- 

1.  Act  approved  April  10,  1806,  cb.  20.  2.  2  Journals,  281,  459. 


43§  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

fore  a  military  tribunal  of  the  alleged  civilian  confederate  of 
General  Arnold  in  his  conspiracy.1  "That  these  articles  were 
similarly  construed,"  says  Winthrop,  "  after  their  re-enactment 
in  1 806,  appears  from  the  military  orders  of  the  army  of  West 
L,ake  Champlain  in  1813,  in  which  the  two  articles  were  pub- 
lished for  the  information  and  warning  of  the  civil  community 
as  'being  equally  binding  on  the  citizen  as  the  soldier.'  "  2 

During  the  civil  war  the  view  was  adhered  to  that  the  Arti- 
cles of  War  in  question  embraced  civilians  within  their  pur- 
view, and  many  courts-martial  were  convened  to  try  offenders 
from  that  class  ;  their  proceedings  were  approved  and  no  ques- 
tion of  jurisdiction  arose.  Finally,  the  act  of  March  3d,  1863,3 
denounced  the  death  penalty  against  '  all  persons  '  found  lurk- 
ing as  spies  in  or  about  the  camps  or  posts  of  the  army  in  time 
of  war,  if  convicted  thereof  before  either  a  court-martial  or  mili- 
tary commission.  It  is  difficult  to  perceive  how  the  term  '  all 
persons '  is  of  more  general  application  in  this  connection  than 
'  whosoever.'  Evidently  the  statute  in  each  case  was  intended 
to  embrace  transgressors  of  all  descriptions  who  should  thus 
violate  the  laws  of  war.  And  though  the  civil  courts  could 
take  cognizance  of  the  civil  aspect  of  the  case,  it  is  of  para- 
mount importance  that  courts-martial  may  likewise  pursue  the 
military.  It  is  necessary  that  spies,  whoever  they  be,  shall 
speedily  be  made  examples  of.  This  salutary  end  the  sum- 
mary processes  of  courts-martial  and  military  commissions  are 
peculiarly  well  suited  to  accomplish. 

Of  course  when  a  military  commander  assumes  the  responsi- 
bility of  arresting  and  trying  a  civilian  for  being  a  spy,  he  should 
be  certain  that  the  case  is  clear.  Otherwise  he  is  liable  to 
answer  in  damages.  It  is  his  duty  to  prevent  spies  from  carry- 
ing intelligence  of  his  movements,  strength,  and  plans  to  the 
enemy.  In  the  execution  of  this  duty  he  has  necessarily  to 
use  his  discretion  as  to  the  means  he  will  adopt.  And  it  would 
be  opposed  to  all  principles  of  law,  justice,  or  sound  policy  to 
hold  that  officers,  called  upon  to  exercise  their  deliberate  judg- 
ments, are  answerable  for  a  mistake  when  their  motives  are 
pure  and  untainted  with  fraud  or  malice.     Nevertheless,  he  is 

1.  Magazine  American  History,  1877,  p.  540.  2.  Vol.  1,  p.  124. 

3.  Chap.  75,  sec.  38  (sec.  1343,  R.  S.). 


RESPONSIBILITY    OF    COMMANDERS — MARTIAL   LAW.         439 

expected  to  act  calmly,  to  examine  into  the  facts  of  each  case 
as  much  as  circumstances  will  permit,  and  to  show  that  he  is 
possessed  of  that  amount  of  good  judgment  and  common  sense 
which  reasonably  may  be  expected  of  one  in  his  position. 

The  case  of  McConnell  v.  Hampton,  the  second  of  the  cases 
just  referred  to,  arose  out  of  the  circumstance  that  General 
Hampton,  commanding  the  American  forces  at  and  in  the 
vicinity  of  Burlington,  Vermont,  near  the  Canadian  border, 
where  war  was  being  actively  prosecuted,  arrested  McConnell 
as  a  spy,  although  he  was  a  citizen.  He  was  tried  and  ac- 
quitted. There  were  many  circumstances  apparently  against 
him  ;  he  had  been  seen  in  the  company  of  British  officers  ;  he 
was  known  to  be  a  smuggler  of  goods  across  the  border  ;  and 
when  interrogated,  he  made  untruthful  statements  about  his 
suspicious  actions  to  the  commanding  general.  The  next  year 
action  for  assault  and  battery  being  sued  out  against  the  gen- 
eral, the  jury  rendered  a  verdict  for  $9,000  in  favor  of  the  plain- 
tiff. On  appeal,  a  new  trial  was  granted,  because  of  excessive 
damages,  the  court  remarking  that  in  awarding  damages  the 
jury  must  have  overlooked  the  critical  and  delicate  situation  of 
the  defendant,  as  commander  of  an  army  upon  the  frontiers,  as 
also  the  very  suspicious  light  in  which  he  must  have  viewed 
McConnell' s  conduct. 

Looked  at  from  whatsoever  standpoint  we  will,  this  case  does 
not  present  many  features  which  the  law-abiding  citizen  will  con- 
template with  pleasure.  If  it  were  to  be  considered  as  establish- 
ing a  precedent,  the  result  would  be  that  military  commanders, 
even  within  sight  of  foreign  hostile  territory,  and  actively  operat- 
ing against  the  enemy,  would  prefer  to  give  spies  immunity 
rather  than  suffer  the  consequences  of  arresting  and  trying  them. 
General  Hampton  was  in  command  of  an  army  which  had  been 
organized  to  invade  Canada.  He  was,  for  this  purpose,  upon 
the  frontiers  of  the  United  States,  and  it  was  of  the  first  im- 
portance to  prevent  the  enemy  from  receiving  information  re- 
garding his  army  or  its  movements.  To  do  this  it  was  neces- 
sary that  he  arrest  those  whose  actions  or  words  gave  reason- 
able grounds  for  belief  that  they  were  in  correspondence  with 
the  enemy.  The  law  then  on  the  statute  books  denounced  the 
death  penalty  against  any  person  whomsoever  convicted  by  a 
court-martial  of  this  treasonable  offence.       General  Hampton 


440  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

proceeded,  therefore,  strictly  within  the  line  of  his  duty  when 
he  arrested  and  tried  McConnell  under  the  suspicious  circum- 
stances surrounding  him.  Hence  it  was  a  case  coming  pecu- 
liarly within  the  rule  before  mentioned,  as  laid  down  by  the 
Supreme  Court  of  the  United  States,  that  a  commander,  acting 
as  a  public  officer,  invested  with  certain  discretionary  powers, 
can  not  be  made  answerable  for  any  injury,  if  he  does  not  ex- 
ceed the  scope  of  his  authority,  and  is  not  influenced  by  malice, 
corruption,  or  cruelty.1 

Had  the  general  declared  martial  law  in  his  camp  and  the 
immediate  vicinity  he  would  have  been  justified.2  He  was  in 
command  in  the  face  of  the  enemy,  whose  territory  and  military 
forces  were  but  a  few  miles  distant.  The  United  States  Gov- 
ernment had  intrusted  to  him  the  task  of  defeating  the  enemy 
in  that  quarter,  and  maintaining  there  the  prestige  and  suc- 
cess of  the  American  arms.  No  more  onerous  task  could  be 
imposed  upon  a  public  officer.  Whatever  reasonable  and 
usual  means  were  necessary  he  had  a  right  to  utilize  for  the 
accomplishment  of  his  purpose.  Assuredly  it  was  necessary 
that  he  prevent  spies  from  plying  their  nefarious  practices. 
Had  he  failed  in  this  he  would  have  been  without  excuse  if 
disaster  resulted.  He  could  not  wait,  perhaps,  for  positive 
proofs  of  guilt,  such  as  would  be  necessary  in  a  court  of  law  to 
convict  of  treason  ;  but  he  had  to  act  upon  reasonable  cause  of 
suspicion  that  McConnell  was  a  spy,  and  in  this  the  attending 
circumstances  justified  him.  It  is  well  known  that  military 
commanders  in  such  situations,  while  they  must  avoid  the 
charge  of  acting  oppressively,  yet  they  are  required  to  act 
promptly  and  upon  evidence  which  to  them  at  the  time  seems 
sufficient,  though  afterwards  it  may  transpire  that  appearances 
had  deceived  them.  If  it  were  otherwise— if  it  were  necessary 
that  the  commander  pause  in  the  midst  of  important  operations 
and  carefully  examine  the  evidence  upon  which  spies  and 
others  traitorously  are  plotting  with  the  enemy,  in  order  that 
he,  the  commander,  may  subsequently  vindicate  his  conduct  in 
arresting  them  before  a  civil  court  sitting  long  after  the  event, 
when  the  pressing  necessities  of  the  circumstances  which  im- 
pelled the  commander  to  act  have   disappeared,  the  hour  for 

i.  7  Howard,  89.  2.  4  Wallace,  2. 


RESPONSIBILITY    OF   COMMANDERS — MARTIAL   LAW.  44I 

action  would  pass  unimproved,  the  enemy  accomplish  his  pur- 
pose through  the  very  information  which  these  spies  had  given 
him.  Had  the  arrests  not  been  made  the  courts  might  have 
been  driven  out  by  that  very  enemy  whose  machinations  the 
arrests  frustrated. 

Civil  courts  should  not  judge  too  harshly  of  the  measures 
taken  by  military  commanders  under  such  circumstances. 
They  should  remember  that  to  these  measures  being  taken 
they  may  owe  it  that  now  they  are  able  to  sit  undisturbed. 
Such  considerations  should  prevent  their  being  swayed  by  igno- 
rant and  popular  prejudice.  To  the  credit  of  the  judiciary  be 
it  said  that  they  are  not  as  a  rule  unmindful  of  these  weighty 
considerations,  particularly  in  the  higher  branches. 

The  case  of  McConnell  v.  Hampton  was  considered  by  some 
at  the  time  as  a  striking  illustration  of  the  independence  of 
of  American  judges  and  juries  in  the  maintenance  of  the  sacred 
principle  of  personal  liberty  against  encroachment,  no  matter 
how  high  the  official  and  social  position  of  him  who  would 
assail  it.  Regarded,  however,  in  the  light  of  history,  when  the 
passions  of  the  moment  have  subsided,  it  will  be  more  apt  to 
impress  posterity  as  presenting  the  spectacle  of  a  public  officer 
who  acted  to  the  best  of  his  judgment  in  a  great  emergency 
being  prosecuted  therefor,  not  from  considerations  affecting  the 
public  weal  or  in  order  that  the  just  rights  of  the  citizen  thereby 
might  be  maintained  against  the  attacks  of  tyranny,  but  that 
the  forms  of  law  might  be  used  as  a  screen  to  further  the  ends 
of  private  vengeance,  whetted  by  the  mercenary  hope  of  re- 
covering heavy  damages  which  the  reputed  wealth  of  the  distin- 
guished defendant  was  believed  to  render  possible.  The  fact  that 
General  Hampton  was  a  large  property  owner  was  dilated  upon 
before  the  court.  Every  device  was  made  use  of  to  prejudice 
the  jury.  And,  as  remarked  by  L,ord  Campbell,  regarding  the 
condemnation  of  Governor  Wall,  the  prosecution  of  General 
Hampton  appears  not  to  have  been  a  striking  display  of  the 
impartiality  of  the  bench,  but  rather  as  "an  instance  of  the 
triumph  of  vulgar  prejudice  over  humanity  and  justice."1 
' '  Commanders  in  the  field  are  under  no  obligations  to  take  the 
opinions  of  judges,"  says  Mr.  Whiting,  "as  to  the  character 

1.   Lives  of  the  Chief  Justices  of  England,  Lord  Elleiiborough,  p.  158. 


442  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

and  extent  of  their  military  operations,  nor  as  to  the  question 
who  are  and  who  are  not  public  enemies,  nor  who  have  and  who 
have  not  given  reasonable  causes  to  believe  that  acts  of  hostility 
are  intended.  These  questions  are  by  the  paramount  laws  of 
war  to  be  settled  by  the  officer  in  command. ' '  1 

Upon  this  subject  Mr.  Pomeroy,  in  his  Constitutional  Law, 
remarks  :  "  Whenever  a  civilian,  citizen  or  alien,  is  engaged  in 
practices  which  directly  interfere  with  waging  war,  which  di- 
rectly affect  military  movements  and  operations,  and  thus 
directly  tend  to  hinder  or  destroy  their  successful  result ;  and 
when,  therefore,  these  practices  are  something  more  than  mere 
seditious  or  traitorous  designs  or  attempts  against  the  existing 
civil  government,  the  President,  as  Commander-in-Chief,  may 
treat  this  person  as  an  enemy  and  cause  him  to  be  arrested,  tried, 
and  punished  in  a  military  manner,  although  the  civil  courts 
are  open,  and  although  his  offence  may  be  sedition  or  treason, 
or  perhaps  may  not  be  recognized  as  a  crime  by  the  civil  code."  2 

Thus  far  it  has  been  assumed  that  officers,  in  exercising  mili- 
tary authority  under  martial  law,  keep  within  the  limits  of 
their  jurisdiction,  if  not  as  defined  by  statute,  yet  as  recognized 
by  custom.  So  long  as  this  is  done  they  deserve,  as  they  gen- 
erally will  receive,  not  only  the  support  of  their  superiors,  but 
of  the  civil  community  and  authorities. 

The  question  as  to  what  is  within  an  officer's  jurisdiction, 
under  martial  law  may  not  be  well  settled.  It  is  seldom  that 
statutes  confer  such  authority.  The  Supreme  Court  decided  that 
a  state  of  war  existed  in  Rhode  Island  when  martial  law  was  de- 
clared there,  hence  those  intrusted  with  its  execution  were  war- 
ranted in  enforcing  the  laws  of  war.  When  Congress,  through 
the  reconstruction  acts,  established  martial  law  over  certain 
States,  only  the  more  general  powers  of  the  military  command- 
ers were  defined.  The  latter  went  for  the  great  mass  of  rules 
by  which  they  were  to  be  governed  to  the  maxims,  traditions, 
and  customs  of  the  military  service.  In  a  case  of  martial  law 
without  legislative  sanction,  but  which  results  from  circum- 
stances, it  will  be  for  officers  who  enforce  it  to  lay  down  the 
rules  by  which  the  people  are  to  be  governed  ;  and,  if  this  be 
not  done,  it  only  remains  to  apply  to  the  civil  the  ordinary  rules 
for  governing  the  military  community. 

i.  War  Powers,  iotb  edition,  p.  173.  2.  Section  714. 


RESPONSIBILITY    OF    COMMANDERS — MARTIAL    LAW.  443 

"  One  should  always  bear  in  mind,"  says  Dicey,  "  that  the 
question  whether  the  force  employed  [under  martial  law]  was 
necessary  or  excessive  will,  especially  when  death  has  ensued,  be 
ultimately  determined  by  a  judge  and  jur)^,  sitting  in  quiet  and 
safety  after  the  suppression  of  a  riot,  and  their  judgment  may 
differ  considerably  from  that  formed  by  a  general  or  magistrate, 
who  is  surrounded  by  armed  rioters  and  knows  that  any  mo- 
ment a  riot  may  become  a  formidable  rebellion,  and  the  rebel- 
lion, if  unchecked,  become  a  successful  revolution."1  This  is 
necessary  as  a  restraint  upon  unwarranted  use  of  temporary 
authority.  But  in  passing  upon  the  acts  of  executive  officers 
under  these  circumstances,  every  consideration  must  be  given 
to  the  fact  that  they  were  compelled,  upon  trying  occasions, 
when  they  had  little  time  for  reflection ,  and  events  of  gravest 
importance  hung  upon  their  promptly  taking  decisive  action. 
If  they  acted  honestly,  with  an  eye  single  to  the  best  interests 
of  the  service  and  government,  it  never  can  be  made  a  basis  of 
a  claim  for  vindictive  damages  that  they  committed  an  error  of 
judgment.2 

It  is  not  meant  by  this  that  United  States  officers  must,  of 
necessity,  defend  themselves  before  the  State  courts.  Congress 
has  provided  for  this  case.  Section  753,  Revised  Statutes,  reads 
as  follows  :  ' '  The  writ  of  habeas  corpus  shall  in  no  case  extend 
to  a  prisoner  in  jail  unless  when  he  is  in  custody  under  or  by 
color  of  the  authority  of  the  United  States  ;  or  is  committed 
for  trial  before  some  court  thereof ;  or  is  in  custody  for  an  act 
done  or  committed  in  pursuance  of  a  law  of  the  United  States, 
or  of  an  order,  process,  or  decree  of  a  court  or  judge  thereof ;  or 
is  in  custody  in  violation  of  the  Constitution,  or  of  a  law  or 
treaty  of  the  United  States."  Appeal  lies  finally  in  such  cases 
to  the  Supreme  Court  of  the  United  States. 

It  can  not  be  doubted  that  the  intention  and  effect  of  this  law 
is  to  withdraw  the  Federal  question,  on  which  a  petitioner  un- 
der the  act  claims  justification  and  exemption,  away  from  the 
State  courts  for  full  and  final  determination  by  the  Federal 
judge,  and  to  discharge  the  petitioner  from  State  custxxty  when 
he  establishes  by  proof  to  the  satisfaction  of  the  Federal  judge 
that  he  is  entitled  to  his  discharge.     In  this  case  the  necessary 

1.  Law  of  the  Constitution,  p.  268.         2.  3  Bissell,  13  ;   1  Abbott,  2i2-'45. 


444  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

theory  of  the  law  is  that  he  is  to  be  deemed  innocent ;  that  he 
has  committed  no  crime ;  that  he  has  only  done  what  the 
supreme  law  of  the  land  has  required  him  to  do.  If,  however, 
he  fail  to  make  out  his  alleged  justification  under  Federal 
authority,  then  he  is  remanded  for  trial  on  the  charge  made 
in  the  State  court.  ] 

It  has  been  judicially  decided,  as  before  remarked,  that  the 
phrase  'a  law  of  the  United  States,'  in  section  753,  does  not 
necessarily  mean  a  statute  law.  It  means  unwritten  law  as 
well.  This  construction  is  important  in  connection  with  the 
exercise  of  martial-law  authority.  Commenting  upon  the 
language  of  the  Constitution  that  the  President  "  shall  take 
care  that  the  laws  be  faithfully  executed,"  the  Supreme  Court 
says  :  "Is  this  duty  limited  to  the  enforcement  of  acts  of  Con- 
gress or  of  treaties  of  the  United  States  according  to  their  ex- 
press terms,  or  does  it  include  the  rights,  duties,  and  obligations 
growing  out  of  the  Constitution  itself,  our  international  relations, 
and  all  the  protection  implied  by  the  nature  of  the  government 
under  the  Constitution  ?  "  The  argument  of  the  court,  upon 
which  it  based  its  opinion,  was  that  the  latter  view  was  the 
correct  one,  and  consequently  that  the  phrase,  '  law  of  the  United 
States,'  in  the  statute  embraced  acts  taken  in  pursuance  of  the 
injunction  to  "see  that  the  laws  were  faithfully  executed," 
if  they  were  necessary  and  proper  to  that  end,  even  although 
they  were  not  prescribed  in  the  letter  of  the  law  equally  as 
though  they  were  enjoined  and  fully  set  out  in  the  statute 

Note. — The  case  in  re  Neagle  was  this  :  A  justice  of  the  Supreme 
Court  had  punished  certain  parties — man  and  wife — for  contempt  com- 
mitted in  presence  of  the  court.  They  were  known  desperate  characters, 
and  vowed  vengeance  upon  the  justice.  The  attorney  of  the  United 
States,  in  view  of  the  premises,  took  measures  to  protect  the  justice  when 
next  time  he  went  on  duty  in  that  circuit.  Neagle  was  appointed  a  deputy 
marshal  and  put  upon  the  service  of  defending  the  justice  if  attacked. 
The  assault  being  made,  as  was  anticipated,  Neagle  slew  the  assailant. 
Being  arrested  by  the  California  State  authorities  on  the  charge  of  murder, 
Neagle  petitioned  the  United  States  Circuit  Court,  under  section  753,  R. 
S.,  for  a  writ  of  habeas  corpus  and  a  hearing  before  the  latter  court.  The 
court  granted  the  petition  and  discharged  the  accused.  The  State  ap- 
pealed, and  the  judgment  of  the  Circuit  Court  was  affirmed  by  the  Su- 
preme Court  of  the  United  States. 

1.  135  U.  S.,  40-76  ;  In  re  Neagle. 


RESPONSIBILITY    OF    COMMANDERS — MARTIAL   LAW.  445 

book.1  The  ground  was  taken  in  no  unmistakable  manner 
that  a  written  law  was  not  necessarily  meant  by  the  statute 
(section  753),  but  that  any  obligation,  fairly  and  properly  in- 
ferable from  the  Constitution,  or  any  duty  of  an  executive  offi- 
cer to  be  derived  from  the  general  scope  of  his  duties  under 
the  laws  of  the  United  States,  is  '  a  law  '  within  the  phrase  '  a 
law  of  the  United  States  '  contained  in  that  section.2 

Not  only  are  officers  protected  when  they  are  arrested  for 
crimes,  provided  there  is  a  question  involved  arising  under  the 
interpretation  here  given  to  "  laws  or  Constitution  of  the  United 
States,"  but  in  civil  suits  they  may  likewise  have  the  benefit 
of  trial  before  Federal  tribunals.  This  was  not  true  down  to 
March  2,  1833.  Prior  to  that  time  all  persons,  in  either  the 
civil  or  military  service  of  the  United  States,  were  left  to  the 
jurisdiction  of  State  tribunals  for  alleged  violation  of  local  laws, 
and  the  only  source  of  relief  was  through  writ  of  error  from  the 
Supreme  Court  of  the  United  States  for  the  correction  of  any 
mistake  that  might  have  been  made  in  point  of  law.  By  act, 
March  2,  1833  (4  Stat,  at  Lg.,  632,  ch.  57),  came  the  first  relief; 
and,  in  certain  cases,  revenue  officers,  proceeded  against  in 
State  courts,  were  entitled  to  have  their  causes  transferred 
through  writ  of  habeas  corpus  for  determination  before  the 
Federal  tribunals.  This  was  followed  by  section  5,  act  March 
3,  1863,  which  provided  that  any  suit  or  prosecution  instituted 
in  a  State  court  for  an  act  done  by  virtue  of  an  order  of  the 
President,  or  under  color  of  his  authority,  or  that  of  an  act  of 
Congress,  might  be  removed  to  the  Circuit  Court  of  the  United 
States  of  the  district,  and  that  thereupon  the  jurisdiction  of 
the  State  court  should  cease.  This  act  by  its  terms  applied 
only  to  causes  arising  during  the  then  existing  rebellion.  Its 
terms  were  afterwards  modified,  but  not  to  the  prejudice  of  the 
Federal  officers  (act  May  11,  1866).  Finally,  we  have  the  act 
of  March  3,  1875  (25  Stat,  at  L,g.,  433),  which  interposes  an  ob- 
stacle to  the  prosecution  of  Federal  officers  in  the  State  courts 
in  all  controversies  arising  under  the  Constitution  and  laws  of 
the  United  States,  by  providing  for  the  transfer  of  causes  to  the 
Circuit  Court  embracing  the  district  where  suit  is  brought.  The 
whole  tenor  of  the  act  shows  conclusively  that  it  was  intended, 

1.  Ibid.  2.  Ibid,  p.  79  ;  Lamar,  J.,  and  Fuller,  C.  J.,  dissenting  views. 


446  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

at  the  option  of  the  defendant,  to  avoid  the  effect  of  local  prej- 
udice that  might  unconsciously  affect  a  State  court  by  giving 
a  Federal  officer,  there  pursued,  the  right  to  be  heard  in  a  Fed- 
eral forum.  ' 

It  may  be  easy,  the  hour  of  danger  and  threatened  anarchy 
having  passed,  quietly  to  sit  down  under  the  protection  of  vin- 
dicated law  and  point  out  alleged  errors  which  military  author- 
ities may  have  fallen  into  in  those  trying  times.  But  it  must 
not  be  forgotten  that  calmness  and  quietude  do  not,  as  a  rule, 
attend  the  enforcement  of  martial  law,  or,  if  so,  it  is  because 
the  military  power  is  being  put  forth  to  crush  out  concealed 
conspiracy,  which  while  not  disturbing  the  surface  of  affairs,  yet 
is  more  dangerous,  perhaps,  to  the  community  and  to  good  gov- 
ernment than  open  insurrection.  At  such  times  the  military 
authorities  must  act  with  promptness,  or  they  will  be  too  late 
for  any  useful  purpose,  either  repressive  or  deterrent.  They 
must  act  with  firmness,  moderation  suited  to  the  occasion,  and 
that  degree  of  discretion  which  reasonably  may  be  expected  of 
public  officers  in  their  stations  ;  but  they  must  not  hesitate  to 
act  with  precision  and  dispatch  when  the  hour  of  action  arrives, 
or  all  is  lost. 

The  military  authorities  proceed  to  the  extremities  of  mar- 
tial law  to  preserve  society  and  government  from  some  great 
danger,  either  present  or  immediately  impending.  They  may, 
indeed,  sit  supinely  and  let  disorder  and  treason  run  their 
course.  They  may  plead  in  extenuation  of  this  that  they  are 
not  called  upon  to  interpose  the  military  arm  in  the  regulation 
of  civil  affairs.  In  such  an  emergency  the  civil  power  is  left 
to  struggle  with  disturbing  elements  beyond  their  ability  suc- 
cessfully to  manage.  As  a  result  society  is  distracted,  the 
orderly  conduct  of  affairs  impeded,  and  the  people  deprived,  for 
the  time  being,  of  protection  to  person  and  property.  By  adopt- 
ing this  course  the  military  would  run  no  risk  of  prosecutions 
for  assumption  of  authority.  But  would  it  be  the  patriotic 
course  ?  Would  it  be  that  which  the  law-abiding  portion  of  the 
community  would  have  them  adopt  ?  If  not ;  if  those  who  are 
interested  in  maintaining  and  perpetuating  good  civil  govern- 
ment, prefer  to  have  the  military  interfere  in  those  great  emer- 

i.  Hare,  Const.  Law,  v.  2,  pp.  io82-'84  ;  see  ante, -p.  121. 


RESPONSIBILITY    OF   COMMANDERS — MARTIAL   LAW.  447 

gencies  which  sometimes  arise,  and  with  which  the  ordinary 
civil  authorities  can  not  contend,  they  must  see  to  it  when  the 
soldiers — not  from  love  of  power,  but  from  public-spirited 
motives  or  a  sense  of  duty — do  interpose,  that  they  are  not 
afterwards  unreasonably  pursued  by  civil  actions  because  the 
measures  they  then  adopted  might  not  in  all  instances  be 
susceptible  of  a  strictly  technical  defence  under  the  rules  of  the 
civil  judicature.  This  may  be  considered  certain  :  if  this 
course  be  pursued  towards  them  in  one  instance,  their  military 
successors  will  be  very  cautious  how  they  incur  similar 
liabilities. 

Ultimately  the  responsibility  must  rest  upon  those  intrusted 
with  the  civil  administration  to  determine  upon  such  occasions 
whether  it  be  better  to  permit  accumulating  dangers  to  run 
their  course  at  whatever  sacrifice  of  law,  order,  life,  and  prop- 
erty, until  license  has  spent  itself  and  civil  government  can 
again  properly  perform  its  functions,  or  to  make  way  for  the 
military  more  speedily  to  restore  the  civil  power,  even  if  this 
costs  the  temporary  forfeiture  of  a  portion  of  the  rights,  privi- 
leges, and  immunities  of  the  citizens  involved.  This  is  the  case 
of  ordinary  rebellion,  insurrection,  or  disturbances  which  set 
at  defiance  the  powers  of  government  over  districts  more  or  less 
extensive.  When  open  war  exists,  and  the  commander  within 
his  own  territory  is  operating  in  face  of  the  enemy,  his  liberty 
of  action  is  greater.  It  is  then  for  him  to  decide  what  meas- 
ures, restrictive  or  suppressive  of  civil  authority,  the  success 
of  his  military  movements  may  render  necessary.  Not  that 
he  may  even  then  wanton  with  power  at  the  expense  of  his 
fellow-citizens.  Far  from  it.  But,  having  exercised  his  ac- 
knowledged right  of  self-determination  as  to  what  is  necessary 
for  military  success  under  the  circumstances,  even  though  this 
include  martial  law  in  his  immediate  vicinity,  he  is  to  the 
fullest  entitled  to  every  consideration  which  springs  out  of  a 
charitable  construction  of  his  acts  when  viewed  in  the  light  of 
the  dangers  surrounding  and  responsibilities  devolving  upon 
him  at  the  time. 


448  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 


CHAPTER  XII. 


RESPONSIBILITY    OF   SUBORDINATES. 

It  may  become  an  important  question  for  subordinates  how 
far  the  orders  of  military  superiors  justify  them  before  the  civil 
law  in  the  exercise  of  martial-law  powers.  "Inferiors  are  re- 
quired to  obey  strictly  and  to  execute  promptly  the  lawful 
orders  of  the  superiors  appointed  over  them."1  They  are  not 
required  to  obey  unlawful  orders.  Yet  the  subordinate  who 
assumes  to  determine  what  is  lawful  does  so  under  grave  re- 
sponsibility. The  presumption  of  law  is  against  him.  He 
must  remove  it  or  stand  without  justification.  And  this  in  the 
military  profession  means  much  to  his  disadvantage.  Not  that 
the  penalty  which  may  attach  to  trial  and  conviction  by  a 
court-martial  may  be  so  great,  although  the  blot  thus  cast  on 
one's  record  is  to  be  shunned  ;  but,  let  it  once  be  understood 
that  a  soldier  hesitates  to  obey  orders  and  his  usefulness  re- 
ceives a  fatal  stroke.  His  superiors  no  longer  implicitly  trust 
him,  and  no  greater  misfortune  can  befall  a  soldier,  be  he  high 
or  low,  than  to  lose  the  confidence  of  his  superior  officers.  It 
can  not  be  too  firmly  impressed  on  the  mind  of  the  military 
man  that  the  first  and  last  duty  of  the  soldier  is  cheerful  obedi- 
ence. It  is  not  for  him  to  hesitate  except  to  determine  how 
his  orders  can  most  faithfully  be  executed,  not  only  in  letter 
bnt  in  spirit.  This  cheerful  obedience  to  the  powers  that  be  is 
the  foundation  of  discipline,  which  itself  is  the  soul  of  the  mili- 
tary system — not  discipline  inspired  by  terror,  but  based  upon 
affection  for  and  pride  in  the  profession  and  a  willingness,  even 
anxiety,  to  do  whatever  will  enhance  its  credit  and  honor.  vSo 
simple  does  the  matter  of  obedience  to  orders  appear  that  its 
importance  is  often  overlooked  by  soldiers  themselves.  Experi- 
ence,  however,   makes  plain   the  simple  truth  that  no  more 

I.  Paragraph  i,  Regulations,  Army  U.  S. 


RESPONSIBILITY    OF   SUBORDINATES.  449 

vital  principle  inheres  to  the  military  code,  and  that  it  well 
deserves  the  prominence  given  it  as  the  leading  article  of  the 
regulations  of  the  army. 

Yet  the  regulations  enjoin  obedience  to  lawful  orders  only, 
leaving  the  inference  that  if  unlawful  they  are  of  no  binding 
force.  The  interesting  question  at  once  arises — who  is  to  judge 
upon  this  point  ?  The  law,  strictly  interpreted,  places  this  re- 
sponsibility upon  the  subordinate.  In  Commonwealth  v.  Blod- 
gett  et  a/.,  the  distinguished  chief  justice  of  Massachusetts 
adverted  to  the  subject  of  military  responsibility  in  the  follow- 
ing terms  :  "It  has  been  argued  upon  the  ground  of  the  evi- 
dent hardships  of  the  case  that  men  ought  not  to  be  held  re- 
sponsible for  acts  done  in  obedience  to  orders  which  they  are 
compelled  to  obey  under  severe  military  discipline.  But  this 
is  not  the  true  principle,  and  it  would  be  dangerous  in  the  ex- 
treme to  carry  it  out  into  its  consequences.  The  more  general 
and  the  sounder  rule  is  that  he  who  does  acts  injurious  to  the 
rights  of  others,  can  excuse  himself,  as  against  the  party  in- 
jured, by  pleading  the  /aa/w/  commands  of  a  superior  whom  he 
is  bound  to  obey.  A  man  may  be  often  so  placed  in  civil  life, 
and  more  especially  in  military  life,  as  to  be  obliged  to  execute 
unlawful  commands  on  pain  of  severe  legal  consequences.  As 
against  the  party  giving  such  command  he  will  be  justified  ; 
inforo  conscientia  he  may  be  excusable  ;  but  toward  the  party 
injured  the  act  is  done  at  his  own  peril,  and  he  must  stand  re- 
sponsible." ' 

The  rule  may  sometimes  appear  to  be  unjust,  but  it  is  based 
on  public  policy  and  flows  from  the  consideration  that  society 
should  be  protected  from  the  evil-doer  who  may  not  be  per- 
mitted to  evade  the  consequences  of  his  unlawful  acts  by  plead- 
ing the  orders  of  any  one,  for  no  one  has  a  right  either  to  set 
the  laws  at  defiance  or  authorize  another  to  do  so.  Still,  as  re- 
gards members  of  the  military  profession,  the  workings  of  the 
rule  are  liable  to  be  so  harsh  that  judges  are  moved  sometimes 
not  only  to  temper  justice  with  great  mercy,  but,  so  far  as 
practicable,  to  transfer  the  responsibility  to  the  officer  who  is- 
sued the  illegal  order.  The  subordinate  is  certainly  in  a  most 
trying  position  when  called  upon  to  obey  an  order  which  he 


1.  10  Metcalf  (Mass.),  p.  56  et  seq. 


450  MILITARY   GOVERNMENT   AND    MARTIAL  LAW. 

deems  to  be  illegal.  If  he  disobey  and  his  judgment  be  at 
fault  he  is  without  recourse  ;  he  must  answer  to  his  commander 
for  disobedience  and  to  the  law  for  any  resulting  evil  conse- 
quences within  its  cognizance.  If,  on  the  other  hand,  he  obey, 
yielding  his  judgment  of  the  law  to  the  soldierly  instinct  of 
obedience,  and  that  judgment  prove  to  have  been  correct,  he 
stands  without  any  defence  which  the  law,  strictly  construed, 
can  admit  as  a  justification.  And  even  though  he  disobey  and 
his  view  of  the  law  prove  to  be  correct  here,  while  the  law 
vindicates  him,  still,  unless  it  be  a  most  flagrant  case  of  illegal 
orders,  such  as  seldom  arises,  he  may  find  that  his  legal  triumph 
has  impaired  his  reputation  as  a  willing,  obedient  soldier. 

No  wonder  that  courts,  when  they  pass  judgment  in  such 
cases,  yield  a  willing  ear  to  the  promptings  of  humanity,  and 
place,  so  far  as  possible,  responsibility  for  violations  of  the  law 
upon  superiors  who  initiate  them,  rather  than  upon  subordi- 
nates whose  actions,  in  carrying  into  execution  the  will  of  those 
whom  the  law  has  placed  over  them,  are  wholly  involuntary. 
"  Except  in  a  plain  case  of  excess  of  authority,  where  at  first 
blush  it  is  apparent  and  palpable  to  the  commonest  understand- 
ing that  the  order  is  illegal,"  said  the  court  in  McCall  v.  Mc- 
Dowell, ' '  I  can  not  but  think  that  the  law  should  excuse  the  mili- 
tary subordinate  when  acting  in  obedience  to  the  orders  of  his 
commander.  Otherwise  he  is  placed  in  the  dangerous  dilemma 
of  being  liable  in  damages  to  third  parties  for  obedience  to  an 
order,  and  to  the  loss  of  his  commission  and  disgrace  for  dis- 
obedience thereto."  ' 

The  court  further  remarked  in  this  case  that  it  was  not  neces- 
sary to  the  ends  of  justice  that  the  subordinate  or  soldier  should 
be  responsible  for  the  illegal  order  of  a  superior  ;  that  in  any 
case  the  party  injured  can  have  but  one  satisfaction,  which 
might  and  should  be  obtained  from  the  really  responsible 
party — the  officer  who  gave  the  illegal  order.  In  civil  life  the 
rule  is  well  settled  otherwise,  but  the  circumstances  of  the  two 
cases  are  entirely  different.  In  civil  life  the  two  parties  are 
equal  in  the  eye  of  the  law  ;  the  subordinate,  unlike  the  soldier, 
does  not  act  upon  compulsion,  but  is  a  free  agent  and  at  liberty 
to  exercise  his  judgment  in  the  premises. 

i.  Deady,  J.,  i  Abbott,  212-229. 


RESPONSIBILITY    OF   SUBORDINATES.  45 1 

As  a  result  of  the  law  as  thus  expounded,  Captain  Douglass, 
a  co-defendant  who  kept  plaintiff,  a  citizen,  in  prison  under  an 
illegal  order  of  McDowell,  the  superior,  was  declared  not  liable 
in  damages,  and  given  his  costs  and  expenses  in  the  suit.  Mc- 
Dowell was  held  responsible  ;  but  the  rule  was  laid  down  that 
although  plaintiff  was  entitled  to  some  damages,  they  were  to 
be  compensatory  only  and  not  vindictive  or  exemplary  unless  it 
could  be  shown  that  the  illegal  order  was  issued  with  evil  in- 
tention or  from  bad  motive. ' 

This  opinion  of  a  learned  and  experienced  judge  deserves 
careful  consideration.  The  principle  upon  which  it  proceeds 
conserves  at  once  the  public  interests  by  maintaining  discipline 
in  the  army  and  the  private  rights  of  the  citizen  by  holding  to 
a  just  responsibility  those  who  invade  them.  The  case  was 
this  :  on  hearing,  at  San  Francisco,  California,  of  the  assassina- 
tion of  President  Lincoln,  one  McCall,  it  was  alleged,  publicly 
gave  expression  to  feelings  of  rejoicing,  and  was  arrested  there- 
for under  an  order  published  by  General  McDowell,  command- 
ing that  military  department.  The  district  was  not  under  mar- 
tial law.  Having  been  confined  in  Fort  Alcatraz  upon  arrest, 
where  Captain  Douglass  commanded,  McCall,  upon  release, 
brought  suit  against  both  these  military  officers  for  his  illegal 
arrest  and  imprisonment.  The  court,  in  disposing  of  the  case, 
ruled  :  (1)  that  the  order  was  illegal ;  (2)  that  plaintiff  was  en- 
titled to  recover  ;  (3)  that  the  order  sprang  not  from  improper 
but  good  motives  involving  the  public  peace  and  safety  ;  (4) 
that  consequently  only  compensatory  damages  were  recover- 
able ;  (5)  that  for  ill-treatment  at  Alcatraz,  unless  it  could 
be  traced  directly  to  Douglass,  McDowell  was  responsible  ;  (6) 
that  Douglass,  acting  under  orders,  was  not  liable  for  the  ar- 
rest and  imprisonment. 

Like  other  principles  of  the  law,  the  rule  of  responsibility 
applicable  to  military  subordinates  who  tread  the  thorny  path 
of  obedience  to  the  illegal  orders  of  their  superiors,  has  re- 
ceived the  impress  of  an  advancing  and  refining  civilization. 
The  older  rule  of  the  English  law  made  no  distinction  between 
the  civil  obligations  of  soldiers  and  other  citizens  at  any  time.2 

1.  See  also  to  same  effect  as  to  damages,  Milligan  v.  Hovey,  3  Bissell,  13. 

2.  Lord  Campbell's  Lives  of  the  Chief  Justices,  v.  3,  p.  91. 


45?  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

Nor  can  the  rule  even  now  be  said  to  be  otherwise  firmly  estab- 
lished, although  the  reasoning  and  conclusions  of  the  court  in 
the  case  just  referred  to  indicate  a  change  towards  more  liberal 
judicial  rulings. 

The  reasoning  of  the  Supreme  Court  of  the  United  States  in 
Martin  v.  Mott,  and  the  conclusions  as  to  the  duty  of  obedience 
drawn  therefrom,  were  much  to  the  same  effect.1  This  was  a 
case  where  a  drafted  militiaman  had  refused  to  be  mustered 
into  the  service  of  the  United  States,  because,  as  he  alleged, 
the  President  had  made  the  order  in  a  case  not  contemplated 
by  the  law  under  which  he  professed  to  act.  The  court  held 
that  the  President  had  a  right  to  determine  when  the  militia 
should  be  called  out,  and  this  decision  was  conclusive  upon  all 
other  persons.  The  service  required  was  military,  the  com- 
mand of  a  military  nature.  In  such  cases  every  delay  and 
every  obstacle  to  an  efficient  and  immediate  compliance  neces- 
sarily tended  to  jeopardize  the  public  interests.  "While  sub- 
ordinate officers  and  soldiers  are  pausing  to  consider  whether 
they  ought  to  obey,  or  are  scrupulously  weighing  the  evidence 
of  the  facts  upon  which  the  commander-in-chief  exercises  the 
right  to  demand  their  services,"  it  was  remarked,  "  the  hostile 
enterprise  may  be  accomplished  without  the  means  of  resist- 
ance. If  a  superior  officer  has  a  right  to  contest  the  orders  of 
the  President  upon  his  own  doubt  of  the  exigency  having 
arisen,  it  must  be  equally  the  right  of  evety  inferior  officer  and 
soldier  ;  and  any  act  done  by  any  person  in  furtherance  of  such 
orders  would  subject  him  to  responsibility  in  a  civil  suit,  in 
which  his  defence  must  finally  rest  upon  his  ability  to  reestab- 
lish the  facts  by  competent  proof.  Such  a  course  would  be 
subversive  of  all  discipline,  and  expose  the  best  disposed  offi- 
cers to  the  chances  of  ruinous  litigation.  Besides,  in  many 
instances,  the  evidence  upon  which  the  President  might  decide 
that  there  is  imminent  danger  of  invasion  might  be  of  a  nature 
not  constituting  strict  legal  proof,  or  the  disclosure  of  the  evi- 
dence might  reveal  important  events  of  State,  which  the  public 
interests,  and  even  safety,  might  imperiously  demand  to  be 
kept  in  concealment." 

i.  12  Wheaton,  19. 


RESPONSIBILITY    OF   SUBORDINATES.  453 

To  the  citizen  who  regards  the  maintenance  of  society  under 
the  protection  of  law  as  the  great  aim  and  end  of  government, 
the  principles  of  law  here  announced  must  be  particularly  grati- 
fying. The  soldier  no  longer  here  appears  as  the  natural 
enemy  of  his  country  and  mankind,  bent  only  upon  rearing  his 
fortunes  upon  the  liberties  of  the  people  which  he  has  pros- 
trated in  the  dust.  On  the  contrary,  he  appears  the  friend  as 
well  as  defender  of  the  people.  But  discipline  in  any  military 
establishment  is  indispensable.  Obedience  in  all  armies  is  the 
first  rule  of  the  soldier.  And  yet,  neither  the  discipline  of  the 
army  nor  the  public  safety  seems,  according  to  these  enlight- 
ened views,  to  require  the  sacrifice  of  subordinates  whose  only 
desire  has  been  loyally  to  carry  out  orders  of  their  superiors. 

It  is  to  be  regretted  that  this  question  of  responsibility  for 
executing  illegal  military  orders  should,  by  conflicting  judicial 
decisions,  be  left  in  doubt.  The  reasonable  rule  which  at  the 
same  time  absolutely  guards  the  rights  of  the  citizen,  is  that 
laid  down  in  McCall's  case.  As  there  mentioned,  the  citizen 
whose  rights  are  assailed  is  entitled  to  but  one  satisfaction  ;  that 
he  may  have  against  the  superior  who  issued  the  illegal  order, 
why  not  compel  him  to  seek  this  means  of  redress  ?  Such  a 
rule,  universally  recognized,  would  foster  a  proper  spirit  of 
discipline  in  the  army ;  in  this  all  classes,  particularly  the  civil 
community  and  property  owners,  are  deeply  interested  ;  for,  as 
experience  has  shown,  an  illy-disciplined  military  is  a  menace 
to  government ;  a  source  of  weakness,  not  of  strength.  Besides, 
it  would  fix  responsibility  certainly  and  at  all  events,  and  obvi- 
ate lukewarm  prosecutions  ;  for  where  both  judge  and  jury  feel 
that  in  equity  if  not  in  law  the  wrong  person  is  being  prosecuted, 
justice  is  not  apt  to  be  zealously  or  even  fairly  administered. 

It  has  been  said  that  if  the  commands  of  the  superior  be 
illegal  and  obviously  so,  the  inferior  who  obeys  can  not  avoid 
responsibility ;  if  illegal,  and  not  obviously  so  to  the  ordinary 
understanding,  he  will  not  be  held  liable  for  obedience  ;  if  legal, 
and  yet  the  inferior  believes  it  to  be  otherwise  and  disobeys,  he 
will  be  triable  by  court-martial  ;  if  legal,  yet  not  obviously  so, 
the  subordinate  is  not  answerable  for  disobedience.1 

r.  Lt.  Young,  "Military  v.  Mobs  "  (1888). 


454  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

But  it  is  apprehended  that  in  the  present  state  of  the  law  as 
generally  expounded,  he  who  obeys  an  illegal  order,  whether 
obviously  so  or  not,  may,  in  the  strict  construction  of  the  law, 
be  held  responsible.  On  the  other  hand,  if  the  order  be  legal, 
and  he  assume  to  disobey,  he  may  be  held  responsible  not  only 
for  the  military  but  the  civil  consequences.  In  the  latter  case, 
that  the  subordinate  doubted  the  legality  is  no  defence  what- 
ever. In  the  first  instance  it  is  true  that,  from  tenderness  of 
feeling,  courts  are  inclined  to  make  a  broad  distinction  between 
orders  that  are  plainly  illegal  to  the  ordinary  mind,  and  those 
wherein  the  illegality  is  doubtful,  holding  the  subordinate  liable 
in  the  first  case,  and  in  the  other  giving  weight  to  every  circum- 
stance that  can  operate  in  his  favor  which,  as  a  rule  amounts, 
practically,  to  immunity  from  liability. 

"  I  do  not  think,  however,"  said  Mr.  Justice  Stephen,  in  his 
history  of  the  criminal  law,  ' '  that  the  question  how  far  superior 
orders  would  justify  soldiers  or  sailors  in  making  an  attack 
upon  civilians  has  ever  been  brought  before  the  courts  of  law 
in  such  a  manner  as  to  be  fully  considered  and  determined. 
Probably  upon  such  an  argument  it  would  be  found  that  the 
order  of  a  military  superior  would  justify  his  inferiors  in  exe- 
cuting any  orders  for  giving  which  they  might  fairly  suppose 
the  superior  officer  to  have  good  reasons.  *  *  *  The  doc- 
trine that  a  soldier  is  bound  under  all  circumstances  whatever 
to  obey  his  superior  officer  would  be  fatal  to  military  discipline 
itself,  for  it  would  justify  the  private  in  shooting  the  colonel  by 
the  orders  of  the  captain,  or  in  deserting  to  the  enemy  on  the 
field  of  battle  by  the  order  of  his  immediate  commander.  *  * 
The  only  line  that  presents  itself  to  my  mind  is  that  a  soldier 
should  be  protected  by  orders  for  which  he  might  reasonably 
believe  his  officer  to  have  good  grounds. ' '  1 

Upon  the  same  subject,  Willes,  J.,  remarked  :  "I  hope  I 
may  never  have  to  determine  that  difficult  question  how  far 
the  orders  of  a  superior  officer  are  a  justification.  Were  I  com- 
pelled to  determine  that  question  I  should  probably  hold  that 
the  orders  are  an  absolute  justification  in  time  of  actual  war — 
at  all  events  as  against  enemies  or  foreigners — and,  I  should 
think,  even  with  regard  to  English-born  subjects  of  the  crown, 

i.  Pp.  2o5-'6. 


RESPONSIBILITY   OF   SUBORDINATES.  455 

unless  the  orders  were  such  as  could  not  legally  be  given.  I 
believe  that  the  better  opinion  is  that  an  officer  or  soldier  act- 
ing under  the  orders  of  his  superior — not  being  necessarily  or 
manifestly  illegal — would  be  justified  by  his  orders."  ' 

Commenting  upon  these  views  Mr.  Dicey,  in  his  introduction 
to  the  study  of  the  Constitution  of  England,  observes  :  "A 
critic  were  rash  who  questioned  the  suggestion  of  a  jurist 
whose  dicta  are  more  weighty  than  most  considered  judgments. 
The  words,  moreover,  of  Mr.  Justice  Willes  enounce  a  principle 
which  is  in  itself  pre-eminently  reasonable.  If  it  be  not  ad- 
mitted, results  follow  as  absurd  as  they  are  unjust ;  every  sol- 
dier is  called  upon  to  determine  on  the  spur  of  the  moment 
legal  subtleties  which,  after  a  lengthy  consultation,  might  still 
perplex  experienced  lawyers,  and  the  private  ordered  by  his 
commanding  officer  to  take  part  in  the  suppression  of  a  riot 
runs  the  risk,  if  he  disobeys,  of  being  shot  by  order  of  a  court- 
martial,  and,  if  he  obeys,  of  being  hanged  under  sentence  of 
a  judge.  Let  it  further  be  carefully  noted  that  the  doctrines  of 
Mr.  Justice  Willes,  which  is  approved  by  the  criminal  code 
commissioners,  applies  it  would  seem  to  criminal  liability  only. 
The  soldier  or  policeman  who,  without  full  legal  justification, 
assaults  or  arrests  a  civilian  incurs  (it  is  submitted),  even 
though  acting  under  orders,  full  civil  liability."  2 

Yet  the  principle  of  immunity  in  such  cases  is  not  fully  es- 
tablished ;  and  though  the  weight  of  decisions  is  tending 
that  way,  the  older  rule  of  law,  that  he  who  under  any  circum- 
stances obeys  an  illegal  order  may  be  held  responsible  for  the 
results,  can  not  be  said  to  be  reversed,  though  its  strictness  is 
impaired.  In  regard  to  the  disobedience  of  a  legal  order,  when 
it  is  not  obviously  so,  the  principle  never  can  be  admitted  that 
the  subordinate  is  not  responsible  for  disobedience.  Nowhere, 
in  any  military  system,  certainly  not  in  that  of  the  United 
States,  is  the  idea  for  one  moment  tolerated  that  a  subordinate 
can  with  impunity  disobey  a  lawful  order.  The  claim  that  it 
was  not  obviously  legal  to  an  ordinary  understanding  would  be 
as  unsoldierly  as  it  would  be  unavailing.3 

1.  Keightly  v.  Bell,  4  Foster  and  Finlason  Repts.,  763-790. 

2.  Appendix,  p.  422. 

3.  Whiting,  War  Powers,  10  edition,  p.  182  ;  Hall  v.  Howd,  10  Conn.,  514. 


456  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

Nor  does  it  signify  whether  subordinates  act  singly  or  col- 
lectively ;  the  rule  of  responsibility  of  members  of  martial-law 
tribunals,  for  instance,  is  identical  with  that  of  the  individual. 
The  reason  for  this  is  apparent.  Such  tribunals  exist  by  virtue 
only  of  an  order  issued  by  a  military  superior  who  either  h?s, 
or  assumes  to  have,  authority  to  convene  them.  The  mem- 
bers are  therefore  proceeding  under  military  orders  in  this  case 
as  well  as  in  that  just  considered.  The  difference  is,  that  here 
each  has  associated  with  him  others  in  the  allotted  work  given 
them  by  a  common  superior.  Such  tribunals  belong  in  the 
category  of  inferior  courts  in  the  sense  that,  when  their  author- 
ity is  questioned,  the  person  who  has  acted  under  it  must  be 
able  to  show  that  jurisdiction  existed.1  All  courts  must  have 
jurisdiction  of  persons  and  causes  to  render  their  proceedings 
valid.  Superior  courts  of  general  jurisdiction  are  supposed  by 
law  to  have  this  until  the  contrary  be  shown.  Members  of  in- 
ferior courts,  however,  can  only  justify  when  he  who  claims 
right  or  exemption  under  the  decree  or  judgment  shows 
jurisdiction  affirmatively. 

The  tribunal  will  decide  whether  or  not  it  has  jurisdiction. 
It  may,  indeed,  happen  that  a  question  will  arise  on  this  point, 
as  in  rare  instances  has  occurred.  In  such  cases  it  is  the  duty 
of  the  tribunal  to  proceed  with  the  business  before  it,  under 
such  orders  as  the  convening  authority  may  give.  That  is  the 
rule  laid  down  by  the  military  authorities.  It  is  a  safe  and 
proper  rule,  conducive  to  discipline  and  the  prompt  adminis- 
tration of  justice  through  the  instrumentality  of  military  tri- 
bunals. It  proceeds  upon  the  principle  that  obedience  to  orders 
among  military  men  is  a  necessity  ;  that  where  a  question 
arises  upon  the  legality  of  the  order,  the  subordinate  disobeys 
at  his  peril ;  and  that  in  matters  which  have  been  so  carefully 
considered  as  those  which  deliberately  and  formally  are  referred 
to  a  military  tribunal  for  its  determination,  the  convening  officer 
has  had  time  and  opportunity  fully  to  pass  upon  the  question 
of  their  legality,  and  in  his  decision  the  court  should  acquiesce 
without  factious  opposition.2  Of  course  this  does  not  excuse 
the  members  if  the  matter  referred  to  the  court  is  one  which, 

i.   19  Johnson,  p.  7  ;  20  Johnson,  p.  343  ;  3  Cranch,  p.  337. 
2.   1  Opinions,  233. 


RESPONSIBILITY    OF   SUBORDINATES.  457 

obviously,  and  without  reflection,  is  seen  to  be  beyond  the  cog- 
nizance of  the  court.  We  can  scarcely  conceive  of  such  a  case, 
yet  if  it  arose  it  would  then  be  necessary  for  the  court  to  decide 
whether  or  not  it  would  proceed  in  a  matter  clearly  beyond  its 
jurisdiction  under  all  the  responsibilities  attached  to  such  a 
line  of  conduct. 

But  it  is  not  the  question  of  jurisdiction  which  possibly  may 
arise  between  commander  and  subordinates  that  now  is  being 
treated  of;  it  is  that  question  arising  before  the  civil  courts 
when  military  officers  are  called  upon  to  vindicate  their  actions 
as  members  of  martial-law  tribunals.  And  here  the  rule  of  re- 
sponsibility attaching  to  inferior  courts  applies.  If  the  tribunal 
had  apparent  jurisdiction  upon  the  facts  spread  before  it,  after 
opportunity  given  all  parties  to  be  heard,  the  members  are  not 
liable  because  subsequently  it  might  appear  that  there  had 
been  a  mistake  as  to  the  facts.  They  can  only  judge  of  the 
facts  laid  before  them,  and  if  these  give  jurisdiction  they  are 
not  liable.1  Nor  does  it  matter  that  the  charges  are  not  drawn 
with  that  particularity  which  characterizes  pleadings  at  com- 
mon law,  and  which  under  the  pressure  of  modern  business 
requirements  are  being  pruned  of  their  verbiage  by  statutes. 
Certainty  is  indeed  essential.  The  time,  place,  who  the  offender 
is,  and  the  character  of  his  offence  must  clearly  appear.  But 
this  may  be  set  out  in  the  baldest  terms.2 

Jurisdiction  being  had,  members  of  military  tribunals  are  not 
liable  unless  it  can  be  shown  that  they  acted  maliciously  ;  and 
the  difficulty  of  making  out  such  a  case  is  hardly  greater  than 
the  improbability  that  they  have  so  acted.  Such  tribunals 
unite  in  themselves  the  functions  of  judge  and  jury.  They 
decide  upon  the  effect  of  evidence,  and  construe  the  law  appli- 
cable to  the  case  before  them.  The  members  are  not  liable 
because  they  form  an  erroneous  judgment  upon  the  facts 
proved,  or  as  to  what  facts  were  proved,  or  the  mode  of  proving. 
In  common  law,  if  a  magistrate  return  a  regular  conviction, 
the  matter  being  within  his  jurisdiction,  it  is  good  in  law, 
although  he  was  wholly  wrong.  On  the  other  hand,  to  kill  a 
convicted  murderer  is  itself  murder,  unless  done  in  the  manner 

i.  Lowther  v.  Lord  Radnor,  8  East's  Reports,  173.  2.  5  Barn  wall  & 

Adolphus'  Reports,  p.  681  (1833)  ;  1  Opinions,  294;  ante,  pp.  280-'!. 


458  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

prescribed  by  law.  In  the  case  of  Linford  v.  Fitz-roy, 1  the 
court  remarked  that  no  action  would  lie  against  a  magistrate 
for  anything  done  by  him  in  the  discharge  of  his  judicial  duty 
without  proof  of  actual  malice  or  ill-feeling,  or  bad  evidence. 
And  so  in  regard  to  military  tribunals  ;  if  the  proceedings  are 
regular  under  the  law  and  usage  of  the  service,  it  does  not  add  to 
the  legal  liability  of  those  who  participate  therein  that  after- 
wards it  should  transpire  that  the  accused  was  innocent,  unless 
bad  motives  on  the  part  of  the  members  be  shown.2  The  law 
governing  in  such  cases  is  similar  to  that  applicable  to  actions 
for  malicious  prosecution  The  true  grounds  for  the  latter  ac- 
tions are  the  plaintiff's  innocence,  and  the  claim  that  it  was  not 
an  honest  prosecution  of  justice.  Yet  if  the  grand  jury  have 
found  an  indictment,  the  defendant  in  an  action  for  malicious 
prosecution  will  not  be  bound  to  show  probable  cause,  but  the 
plaintiff  will  be  constrained  to  show  malice  and  iniquity  in  the 
prosecution.  And  if  the  party  were  convicted,  even  though 
judgment  were  reversed  on  appeal,  it  is  impossible  for  an  action 
for  malicious  prosecution  to  succeed  unless  the  trial  court  can 
be  fixed  with  malice,  and  even  then  the  prosecutor  in  the  origi- 
nal cause  must  be  fixed  with  it  in  order  to  render  him  liable.3 

I.   13  Queen  Bench  Reports,  p.  230.  2.  Finlason,  Martial  Law,  p.  99. 

3.  Saville  v.  Roberts,   1  Lord  Raymord's  Rep.,  374;    Jones  v.  Gwyn,   1 

Wilson  Repts.,  91  ;  Reynolds  v.  Kennedy,  1  Wilson  Repts.,  232. 


BILLS   OF   INDEMNITY.  459 


CHAPTER  XIII. 


BILLS   OF    INDEMNITY. 


It  has  been  the  usage  in  England  to  pass  bills  of  indemnity, 
after  martial  law  has  ceased,  to  protect  from  prosecution  those 
who  then  were  called  upon  to  exercise  unusual  military  author- 
ity. To  some  extent  this  has  been  followed  in  the  United 
States. 

Where  martial  law  has  been  carried  into  execution  pursuant 
to  positive  statute,  as  in  Ireland  in  1803  and  Rhode  Island  in 
1842,  or  in  numerous  instances  in  British  islands  and  colonies, 
such  bills  could  only  indemnify  against  prosecution  for  acts  done 
in  excess  of  what  customary  practices  under  martial  law  would 
justify.  The  statutes  which  either  directly  institute  martial 
law  or  lodge  in  the  chief  executive  authority  to  exercise  this 
power  under  defined  circumstances,  carry  their  own  immunity 
for  acts  done  under  that  law,  provided  he  does  not  transcend 
its  ordinary  limits.  Hence  the  Supreme  Court  of  the  United 
States,  in  referring  to  the  Rhode  Island  rebellion,  said  that  it  was 
a  state  of  war  ;  and  the  established  government  by  proclaiming 
martial  law  resorted  to  the  rights  and  usages  of  war  to  main- 
tain itself  and  overcome  the  unlawful  opposition.  And  not- 
withstanding the  provision  in  the  Federal  Constitution,1  secur- 
ing the  people  in  their  persons,  houses,  papers,  and  effects 
against  unreasonable  searches  and  seizures,  and  always  upon 
duly-certified  warrants,  the  court  in  its  opinion  justified  an 
officer  who  had  entered  a  house  without  such  warrant  while 
martial  law  prevailed. 

After  the  cessation  of  martial  law  in  Jamaica  in  1865  a  bill  of 
indemnity  was  passed  by  the  Colonial  legislature.  It  became 
an  interesting  question  what  protection  this  act  afforded  those 
who,  in  the  performance  of  their  duty,  had  been  instrumental 
in  enforcing  that  law.  Upon  this  point  the  Home  Government 
took  the  advice  of  the  law  officers  of  the  crown.     As  a  result 

1.    Article  4,  Amendments. 


460  MILITARY   GOVERNMENT  AND   MARTIAL   LAW. 

the  Secretary  of  State  informed  the  Colonial  governor  that  the 
effect  of  the  indemnity  act  was  not  to  cover  acts  of  either 
the  governor  or  subordinate  officers,  unless  such  as,  in  case  of 
the  former,  he  might  reasonably  and  in  good  faith  have  con- 
sidered to  be  proper  for  putting  an  end  to  the  insurrection,  or 
such  ds,  in  case  of  subordinates,  had  been  done  under  and  in 
conformity  with  the  orders  of  superior  authority  ;  or,  if  done 
without  such  orders,  to  have  been  done  in  good  faith  and  under 
a  belief,  reasonably  entertained,  that  they  were  proper  for  the 
suppression  of  the  insurrection  and  for  the  preservation  of  the 
public  peace  on  the  island.  Regarding  measures  taken  under 
military  authority  the  important  announcement  was  made  that 
the  proclamation  of  martial  law,  under  the  island  statute, 
operated  within  the  declared  district  to  give  as  complete  in- 
demnity as  the  indemntiy  act  itself.  As  to  civilians  who 
within  the  proclaimed  district  had  acted  bona  fide  for  the  sup- 
pression of  the  rebellion — even  without  military  orders— they 
had  a  protection  secured  to  them  by  the  indemnity  act  which 
they  might  not  obtain  from  the  mere  bperation  of  martial  law. 
To  acts  beyond  the  proclaimed  district  the  indemnity  act  had 
no  applicability. 

Thus  the  principle  of  immunity  for  acts  under  martial  law 
enunciated  by  the  Supreme  Court  of  the  United  States  impli- 
edly, and  by  the  English  government  explicitly, was  in  substance 
the  same,  namely,  that — martial  law  having  been  legally  in- 
stituted— for  acts  which  reasonably  and  with  fair  intendment 
lie  within  the  domain  of  military  customs,  both  officers  and 
men  are  justified,  and  a  bill  of  indemnity  adds  nothing  to 
their  security. 

Under  this  view  of  the  law,  bills  of  indemnity  are  necessary 
only  for  the  protection  either  of  those  civilians  who,  how 
worthy  soever  their  motives,  unite  in  martial-law  measures 
without  being  impelled  by  the  coercion  of  military  authority, 
or  of  the  military  themselves  when  they  resort  to  excessive 
measures,  not  clearly  warranted  by  the  customs  of  war,  yet 
adopted  in  perfect  good  faith,  for  the  public  interest. 

It  may  be  asked,  why  the  necessity  for  bills  of  indemnity,  if 
what  is  lawful  under  the  laws  carries  within  itself  its  own  im- 
munity at  such  times  ?  why  not  allow  what  is  unlawful  to  justify 
itself  as  best  it  may  when  this  becomes  necessary  ?   The  answer 


BILLS    OF    INDEMNITY.  461 

is  that  such  a  course  would  be  contrary  to  public  policy,  for  it 
would  expose  to  prosecution  those  who,  amidst  scenes  of 
unusual  disturbance  and  danger,  were  obliged  for  the  public 
safety  to  adopt  stringent  measures  of  control  but  which  the 
law,  strictly  or  perhaps  liberally  construed,  might  not  warrant. 
Out  of  abundance  of  caution,  therefore,  bills  of  indemnity  have 
sometimes  been  enacted  for  their  protection.  While  in  England 
this  is  the  usual  practice,  it  has  not  been  considered  necessary 
in  the  United  States.  No  bill  of  indemnity  followed  the  exer- 
cise of  martial  law  in  Rhode  Island  by  legislative,  nor  at  New 
Orleans,  nor  upon  either  occasion  when  martial  law  was  in- 
stituted in  Washington  Territory  by  executive  authority,  nor 
were  such  bills  ever  thought  of  in  connection  with  the  exercise 
of  martial-law  power  under  the  reconstruction  acts  of  1867. 

The  frequency  with  which  martial  law  was  resorted  to  during 
the  civil  war  by  both  the  Union  and  Confederate  authorities 
was  a  striking  feature  of  that  contest.  The  proclamation  of  the 
President  of  the  United  States  of  the  24th  of  September,  1862, 
was  sweeping  in  its  terms.1  It  set  at  naught  the  usual  safe- 
guards of  the  civilian  in  time  of  peace,  both  as  regards  security 
of  person  and  property.  This  was  necessary  that  full  effect 
might  be  given  to  the  unusual  powers  assumed  by  the  Presi- 
dent in  the  first  instance,  and  now  conferred  upon  him  by  the 
legislature.  It  was  not  a  time  which  admitted  of  a  wavering 
policy.  Still,  by  carrying  the  President's  orders  into  effect, 
officers  rendered  themselves  liable  to  civil  prosecutions.  It 
therefore  became  necessary  to  protect  them.3  Hence,  the  acts 
before  mentioned  of  May  11,  1866,  and  March  2,  1867,  were 
passed,  "among  other  things,"  to  use  the  language  of  the 
Supreme  Courc  of  the  United  States,  "  to  protect  parties  from 
liability  to  prosecution  for  acts  done  in  the  arrest  and  imprison- 
ment of  persons  during  the  existence  of  the  rebellion,  under 
orders  or  proclamations  of  the  President,  or  by  his  authority  or 
approval,  who  were  charged  with  participation  in  the  rebellion, 
or  as  aiders  or  abettors,  or  as  being  guilty  of  disloyal  practices 
in  aid  thereof,  or  any  violation  of  the  usage  or  laws  of  war. ' ' 3 

1.  Ante,  p.  378  et  seq.  2.   See  ante,  p.  381.  3.  Bean  v.  Beckwith, 

18  Wallace,  510;  see  also,  Beckwith  v.  Bean,  8  Otto,  266. 


462  MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 

In  this  case  a  provost  marshal  had,  pursuant  to  the  Presi- 
dent's instructions,  as  it  was  maintained,  arrested  without  war- 
rant a  civilian  for  persuading  a  soldier  to  desert,  and  after 
keeping  him  in  confinement  for  several  months,  released  him 
without  trial.  The  officer,  in  his  defence,  set  up  the  President's 
orders  as  his  justification.  The  Supreme  Court  remarked  upon 
this  point  that,  granting  that  the  statutes  were  not  liable  to 
any  constitutional  objection,  still  they  did  not  change  the  rule 
of  pleading  when  the  defence  is  set  up  in  a  special  plea,  or 
dispense  with  the  exhibition  of  the  order  or  authority  upon 
which  the  defendant  relied.  Nor  did  they  cover  all  acts  done 
by  officers  in  the  military  service  of  the  United  States  simply 
because  they  were  acting  under  the  general  authority  of  the 
President  as  commander-in-chief  of  the  armies  of  the  United 
States.  The  acts  of  Congress  only  covered  what  was  done 
under  orders  or  proclamations  issued  by  the  President  or  under 
his  authority  ;  and  there  was  no  difficulty  in  the  defendant  set- 
ting forth  such  orders  or  proclamations,  whether  general  or 
special,  if  there  were  any  applicable  to  the  case.  And  although 
in  its  decision  the  Supreme  Court  did  not  pass  upon  the  consti- 
tutionality of  the  acts  in  question — that  point  not  being  before 
them — it  is  a  significant  fact  that  these  acts  were  referred  to  in 
terms  of  commendation  as  measures  which  an  exigency  had 
rendered  necessary. 

In  Mitchell  v.  Clark  these  acts  of  Congress  were  again  care- 
fully and  fully  considered.  The  case  arose  in  Saint  Louis,  Mis- 
souri, when  General  Schofield  was  in  command  there.  It  has 
been  before  remarked  that  the  military  commanders  in  that 
department  during  the  civil  war  resorted  to  forced  contribu- 
tions, under  the  martial-law  power,  from  citizens  whose  loyalty 
was  at  least  doubtful,  for  the  purpose  of  making  comfortable 
Union  refugees  who  had  been  driven  into  the  city  from  portions 
of  the  State  occupied  by  rebels.1  Among  others  of  this  descrip- 
tion, who  enjoyed  the  protection  of  the  Union  army  only,  as 
alleged,  to  plot  against  it  in  the  dark,  was  Clark,  the  defendant 
in  error,  who  either  was  openly  disloyal  or  strongly  tinctured 
with  disloyalty.  Pursuant  to  the  United  States  military  policy 
indicated,  the  rents  due  to  Clark  on  certain  real  estate  were 

1.  Ante,  pp.  150-'  1. 


BILLS    OF    INDEMNITY.  463 

seized  upon.  This,  it  will  be  observed,  was  an  act  which  mar- 
tial law  alone  could  justify.  The  city  where  the  real  estate 
was  situate  was,  and  had  always  been  within  Federal  control. 
The  State  was  never  declared  to  be  in  a  condition  of  rebellion. 
Military  authority  over  civilians  and  civil  matters  could  only 
be  exercised  there,  therefore,  by  virtue  of  martial-law  power. 
After  the  war  Clark  brought  action  against  the  officer  who  had, 
in  obedience  to  superior  military  authority,  appropriated  his 
rents.  The  defendant  set  up  in  defence  the  fourth  and  seventh 
sections  of  the  act  of  March  3,  1863.  The  fourth  section  pro- 
vided that  any  order  of  the  President,  or  issued  pursuant  to  his 
authority,  made  at  any  time  during  the  existence  of  the  rebel- 
lion, should  constitute  a  sufficient  defence  to  any  action  or 
prosecution  for.acts  done  under  or  by  virtue  of  such  order,  or 
any  law  of  Congress  ;  while  the  seventh  section  limited  the 
bringing  all  such  actions  to  two  years  after  the  passage  of 
the  law. 

The  Supreme  Court,  after  citing  the  provisions  of  the  acts  of 
March  3,  1863,  and  of  May  11,  1866,  which  last  greatly  en- 
larged the  indemnifying  scope  of  the  former,  proceeded  : '  "It 
is  not  at  all  difficult  to  discover  the  purpose  of  all  this  legis- 
lation. Throughout  a  large  part  of  the  theatre  of  the  civil  war 
the  officers  of  the  army,  as  well  as  many  civil  officers,  were  en- 
gaged in  the  discharge  of  very  delicate  duties  among  a  class  of 
people  who,  while  asserting  themselves  to  be  citizens  of  the 
United  States,  were  intensely  hostile  to  the  Government,  and 
were  ready  and  anxious  at  all  times,  though  professing  to  be 
non-combatants,  to  render  every  aid  in  their  power  to  those  en- 
gaged in  active  efforts  to  overthrow  the  government  and  destroy 
the  Union.  For  this  state  of  things  Congress  had  provided  no 
adequate  legislation.  Some  statutes  were  passed  after  delay 
of  a  general  character,  but  it  was  seen  that  many  acts  had 
probably  been  done  by  these  officers  in  defence  of  the  life  of 
the  nation  for  which  no  authority  of  law  could  be  found, 
though  the  purpose  was  good  and  the  act  a  necessity.  The 
act  of  1863  and  the  amendatory  act  of  1866  seem  to  have  well 
considered  the  subject.  By  the  fourth  section  of  the  act  of 
1863  Congress  undoubtedly  intended  to  afford  an  absolute  de- 

1.  no  U.  S.,  p.  633. 


464  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

fence  as  far  as  it  had  power  to  do  so. ' '  The  court  then  sus- 
tained the  defence  of  the  statutory  limitation  to  the  action 
provided  in  the  seventh  section  of  the  act. 

In  Beard  v.  Burts  the  Supreme  Court  held  that  the  acts  of 
March  3d,  1863,  and  May  nth,  1866,  extended  protection  to  all 
persons  for  acts  they  had  taken  in  subordination  to  the  military 
authorities  engaged  in  conducting  the  war,  and  conferred  upon 
them  the  same  exemption  from  liability  to  suit  which  belonged 
to  the  President,  the  Secretary  of  War,  and  department  com- 
manders. If  these  expressions  of  the  Supreme  Federal  Tribunal 
did  not  go  to  the  extent  of  sustaining  affirmatively  the  constitu- 
tionality of  the  acts  of  Congress  in  question,  they  did  by  the 
strongest  implication.  The  question  of  constitutionality  was  not 
directly  before  the  court  for  decision  ;  had  it  been,  the  language 
used  can  leave  scarcely  a  doubt  as  to  what  the  opinion  of  the 
court  upon  this  point  would  have  been. 

We  have  thus  reviewed  the  exercise  of  military  authority 
over  the  civil  community  both  in  foreign  lands  and  within  our 
own  territory.  We  have  seen  that  rightly  regulated  the  peo- 
ple, under  free  governments  have  no  just  cause  of  anxiety  from 
this  source.  There  all  authority,  military  and  other,  is  exer- 
cised subject  to  a  proper  system  of  checks  and  balances. 

The  purpose  of  a  military  force  is  to  wage  war  against  the 
armed  enemies  of  the  State.  That  is  what  officers  are  trained 
for,  the  object  for  which  expensive  armaments  are  maintained. 
That  is  the  duty  in  which  the  soldier  takes  pride.  Herein  he 
finds  the  path  to  fame.  To  rule  by  the  sword  over  a  district 
distracted  either  by  war  or  lesser  disturbances  has  nothing  at- 
tractive to  the  military  mind.  It  may  upon  occasion  be  neces- 
sary, but  it  appears  as  a  necessary  evil  only.  Government  of 
some  kind  is  a  necessity,  and  any  government  is  better  than 
none  at  all. 

There  is  only  one  reason  why  the  military  is  resorted  to  for 
governmental  purposes,  namely,  that  it  possesses  the  physical 
and  thence  the  moral  power  to  cause  its  mandates  to  be  re- 
spected. It  is  not  only  fair  but  absolutely  necessary  that  the 
military  commander  and  his  subordinates  be  sustained  in  the 
reasonable  use  of  authority  they  now  must  exercise.  They 
may  not  with  impunity  abuse  it.  But  what  is  then  done  is  en- 
titled to  generous  interpretation  until  the  evil  intent  be  made  to 


BILLS    OF   INDEMNITY.  465 

appear.  What  authority  lies  strictly  within  the  jurisdictional 
line  may  not  be  easy  of  speedy  determination  ;  and  yet  prompt 
action  may  be  requisite  or  direst  consequences  follow.  The  law 
in  its  regard  for  its  own  dignity  and  perpetuity  on  the  one 
hand,  and  the  rights  of  the  citizen  on  the  other,  is  not  unmind- 
ful of  this  fact.  It  weighs  any  case  arising  in  the  balance  of 
its  environments,  holding  to  strict  account  here,  and  making 
charitable  allowances  there,  that  justice  may  fairly,  evenly,  and 
impartially  be  meted  out  to  all — ruler  and  subject  alike.  In 
this  reckoning  the  circumstances  of  peril  as  they  appeared  at 
the  time  operate  with  preponderating  influence  ;  and  inquiry 
is  directed  to  ascertain,  not  whether  that  was  done  which  the 
law  in  times  of  quiet  and  good  order  only  will  justify,  but 
whether  the  line  of  conduct  adapted  to  the  facts  as  they  actu- 
ally existed,  or  reasonably  were  thought  to  exist,  was  pursued 
with  due  solicitation  for  the  rights  of  individuals,  the  needs 
of  society,  the  demands  of  government.  All  these  interests 
are  involved,  and  must  receive  consideration.  Hence  it  is  ap- 
propriate that  indemnity  acts  should  hush  in  the  repose  of 
oblivion  what  in  good  faith  those  in  power  are  thus  impelled 
to  do  while  guarding  with  the  strong  military  arm  the  welfare 
of  all  concerned. 


466  APPKNDIX    I. 


APPENDIC  ES 


APPENDIX    I. 

Headquarters  op  the  Army, 
National  Paeace  of  Mexico,  September  /j,  1847. 

[General  Orders  No.  287.] 

The  General-in-Chief  republishes,  with  important  additions,  the  General 
Orders,  No.  20,  of  February  19,  184.7  {declaring  martial  law),  to  govern 
all  who  may  be  concerned. 

1.  It  is  still  to  be  apprehended  that  many  grave  offences,  not  provided 
for  in  the  act  of  Congress  "  establishing  rules  and  articles  for  the  govern- 
ment of  the  armies  of  the  United  States,"  approved  April  10,  1806,  may 
again  be  committed — by,  or  upon,  individuals  of  those  armies  in  Mexico, 
pending  the  existing  war  between  the  two  Republics.  Allusion  is  here 
made  to  offences,  any  one  of  which,  if  committed  within  the  United 
States  or  their  organized  Territories,  would,  of  course,  be  tried  and  se- 
verely punished  by  the  ordinary  or  civil  courts  of  the  land. 

2.  Assassination,  murder,  poisoning,  rape,  or  the  attempt  to  commit 
either  ;  malicious  stabbing  or  maiming  ;  malicious  assault  and  battery, 
robbery,  theft ;  the  wanton  desecration  of  churches,  cemeteries,  or  other 
religious  edifices  and  fixtures  ;  the  interruption  of  religious  ceremonies 
and  the  destruction,  except  by  order  of  a  superior  officer,  of  public  or 
private  property,  are  such  offences. 

3.  The  good  of  the  service,  the  honor  of  the  United  States,  and  the 
interest  of  humanity  imperioush'  demand  that  every  crime  enumerated 
above  should  be  severely  punished. 

4.  But  the  written  code,  as  above,  commonly  called  the  rules  and  articles 
of  war,  does  not  provide  for  the  punishment  of  any  one  of  those  crimes, 
even  when  committed  by  individuals  of  the  army  upon  the  persons  or 
property  of  other  individuals  of  the  same,  except  in  the  very  restricted 
case  in  the  9th  of  those  articles  ;  nor  for  like  outrages  committed  by  the 
same  class  of  individuals  upon  the  persons  or  property  of  a  hostile  country, 


api'Kndix  r.  467 

except  very  partially  in  the  51st,  52c!,  and  55th  articles  ;  and  the  same  code 
is  absolutely  silent  as  to  all  injuries  which  may  be  inflicted  upon  individ- 
uals of  the  army,  or  their  property,  against  the  laws  of  war,  by  individuals 
of  a  hostile  country. 

5.  It  is  evident  that  the  99th  article,  independent  of  any  reference  to 
the  restriction  of  the  87th,  is  wholly  nugatory  iu  reaching  any  one  of  those 
high  crimes. 

6.  For  all  the  offences,  therefore,  enumerated  in  the  second  paragraph 
above,  which  may  be  committed  abroad  in,  by,  or  upon  the  army,  a  sup- 
plemental code  is  absolutely  needed. 

7.  That  unwritten  code  is  martial  taw,  as  an  addition  to  the  written 
military  code  prescribed  by  Congress  in  the  rules  aud  articles  of  war,  and 
which  unwritten  code  all  armies  in  hostile  countries  are  forced  to  adopt, 
not  only  for  their  own  safety,  but  for  the  protection  of  unoffending  inhab- 
itants and  their  property  about  the  theatres  of  military  operations  against 
injuries,  on  the  part  of  the  army,  contrary  to  the  laws  of  war. 

8.  From  the  same  supreme  necessity  martial  law  is  hereby  declared  as  a 
supplemental  code  in  and  about  all  cities,  towns,  camps,  posts,  hospitals, 
aud  other  places  which  may  be  occupied  by  any  part  of  the  forces  of  the 
United  States  in  Mexico  ;  and  in  and  about  all  columns,  escorts,  convoys, 
guards,  and  detachments  of  the  said  forces  while  engaged  in  prosecuting 
the  existing  war  in  and  against  the  said  Republic,  and  while  remaining 
within  the  same. 

9.  Accordingly,  every  crime  enumerated  in  paragraph  No.  2  above, 
whether  committed — 1,  by  any  inhabitant  of  Mexico,  sojourner,  or  traveler 
therein,  upon  the  person  or  property  of  any  individual  of  the  United  States 
forces,  retainer  or  follower  of  the  same  ;  2,  by  any  individual  of  the  said 
forces,  retainer  or  follower  of  the  same,  upon  the  person  or  property  of 
any  inhabitant  of  Mexico,  sojourner  or  traveler  therein  ;  or  (3)  by  any 
individual  of  the  said  forces,  retainer  or  follower  of  the  same,  upon  the 
person  or  property  of  any  other  individual  of  the  same  forces,  retainer 
or  follower  of  the  same,  shall  be  duly  tried  and  punished  under  the  said 
supplemental  code. 

10.  For  this  purpose  it  is  ordered  that  all  offenders,  in  the  matters 
aforesaid,  shall  be  promptly  seized,  confined,  and  reported  for  trial  before 
military  commissions,  to  be  duly  appointed  as  follows  : 

11.  Every  military  commission,  under  this  order,  will  be  appointed,  gov- 
erned, and  limited,  as  nearly  as  practicable,  as  prescribed  by  the  65th, 
66th,  67th,  and  97th  of  the  said  rules  and  articles  of  war,  and  the  pro- 
ceedings of  such  commissions  will  be  duly  recorded  in  writing,  reviewed, 
revised,  disapproved  or  approved,  and  the  sentences  executed — all,  as 
near  as  may  be,  as  in  the  cases  of  the  proceedings  and  sentences  of  courts- 
martial  ;  provided,  that  no  military  commission  shall  try  any  case  clearly 
cognizable  by  any  court-martial  ;  and  provided,  also,  that  no  sentence  of 
a  military  commission  shall  be  put  in  execution  against  any  individual 
belonging  to  this  army  which  may  not  be,  according  to  the  nature  and 


468  APPENDIX   I. 

degree  of  the  offence,  as  established  by  evidence  in  conformity  with 
known  punishments  in  like  cases  in  some  one  of  the  States  of  the  United 
States  of  America. 

12.  The  sale,  waste  or  loss  of  ammunition,  horses,  arms,  clothing,  or 
accoutrements  by  soldiers  is  punishable  under  the  37th  and  38th  articles 
of  war.  Any  Mexican  or  resident  or  traveller  in  Mexico  who  shall  pur- 
chase of  any  American  soldier  either  horse,  horse  equipments,  arms,  am- 
munition, accoutrements,  or  clothing  shall  be  tried  and  severely  punished 
by  a  military  commission  as  above. 

13.  The  administration  of  justice,  both  in  civil  and  criminal  matters 
through  the  ordinary  courts  of  the  country,  shall  nowhere  and  in  no  de- 
gree be  interrupted  by  any  officer  or  soldier  of  the  American  forces,  ex- 
cept, (1)  in  cases  to  which  an  officer,  soldier,  agent,  servant,  or  follower  of 
the  American  army  may  be  a  party  ;  and  (2)  in  political  cases — that  is, 
prosecutions  against  other  individuals  on  the  allegations  that  they  have 
given  friendly  information,  aid,  or  assistance  to  the  American  forces. 

14.  For  the  ease  and  safety  of  both  parties  in  all  cities  and  towns 
occupied  by  the  American  army,  a  Mexican  police  shall  be  established, 
and  duly  harmonized  with  the  military  police  of  said  forces. 

15.  This  splendid  capital,  its  churches  and  religious  worship,  its  con- 
vents and  monasteries,  its  inhabitants  and  property  are,  moreover,  placed 
under  the  special  safeguard  of  the  faith  and  honor  of  the  American  army. 

16.  In  consideration  of  the  foregoing  protection  a  contribution  of 
$150,000  is  imposed  011  this  capital,  to  be  paid  in  four  weekly  installments 
of  thirty  seven  thousand  five  huudred  dollars  ($37,500)  each,  beginning 
on  Monday  next,  the  20th  instant,  and  terminating  on  Monday,  the  nth 
of  October. 

17.  The  Ayuntamiento,  or  corporate  of  the  city,  is  specially  charged 
with  the  collection  and  payments  of  the  several  installments. 

18.  Of  the  whole  contributions  to  be  paid  over  to  this  army,  twenty 
thousand  dollars  shall  be  appropriated  to  the  purchase  of  extra  comforts 
for  the  wounded  and  sick  in  hospital  ;  ninety  thousand  dollars  ($90,000) 
to  the  purchase  of  blankets  and  shoes  for  gratuitous  distribution  among 
the  rank  and  file  of  the  army,  and  forty  thousand  dollars  ($40,000)  re- 
served for  other  necessary  military  purposes. 

19.  This  order  will  be  read  at  the  head  of  every  company  of  United 
States  forces  serving  in  Mexico,  and  translated  into  Spanish  for  the  in- 
formation of  Mexicans. 


APPENDIX    II.  469 


APPENDIX    II. 

Instructions  for  the  Government  of  Armies  of  the  United 

States  in  the  Field. 

[G.  O.  100,  A.  G.  O.,  1863.] 

Section  i. — Martial  laiv. — Military  jurisdiction.— Military  necessity. — 
Retaliation. 

1.  A  place,  district,  or  country  occupied  by  an  enemy  stands,  in  conse- 
quence of  the  occupation,  under  the  martial  law  of  the  invading  or  occu- 
pying army,  whether  any  proclamation  declaring  martial  law,  or  any 
public  waruiug  to  the  inhabitants,  has  been  issued  or  not.  Martial  law  is 
the  immediate  and  direct  effect  and  consequence  of  occupation  or  con- 
quest. 

The  presence  of  a  hostile  army  proclaims  its  martial  law. 

2.  Martial  law  does  not  cease  during  the  hostile  occupation,  except  by 
special  proclamation,  ordered  by  the  commander  in-chief ;  or  by  special 
mention  in  the  treaty  of  peace  concluding  the  war,  when  the  occupation 
of  a  place  or  territory  continues  beyond  the  conclusion  of  peace  as  oue  of 
the  conditions  of  the  same. 

3.  (See  p.  94,  text.) 

4.  Martial  law  is  simply  military  authority  exercised  in  accordance  with 
the  laws  and  usages  of  war.  Military  oppression  is  not  martial  law  ;  it  is 
the  abuse  of  the  power  which  that  law  confers.  As  martial  law  is  exe- 
cuted by  military  force,  it  is  incumbent  upon  those  who  administer  it  to 
be  strictly  guided  by  the  principles  of  justice,  honor,  and  humanity — vir- 
tues adorning  a  soldier  even  more  than  other  men,  for  the  very  reason 
that  he  possesses  the  power  of  his  arms  against  the  unarmed. 

5.  Martial  law  should  be  less  stringent  in  places  and  countries  fully  oc- 
cupied and  fairly  conquered.  Much  greater  severity  may  be  exercised  in 
places  or  regions  where  actual  hostilities  exist,  or  are  expected  and  must 
be  prepared  for.  Its  most  complete  sway  is  allowed— even  in  the  com- 
mander's own  country — when  face  to  face  with  the  enemy,  because  of  the 
absolute  necessities  of  the  case,  and  of  the  paramount  duty  to  defend  the 
country  against  invasion. 

To  save  the  country  is  paramount  to  all  other  considerations. 

6.  All  civil  and  penal  law  shall  continue  to  take  its  usual  course  in  the 
enemy's  places  and  territories  under  martial  law,  unless  interrupted  or 
stopped  by  order  of  the  occupying  military  power ;  but  all  the  functions 
of  the  hostile  government— legislative,  executive,  or  administrative — 
whether  of  a  general,  provincial,  or  local  character,  cease  under  martial 
law,  or  continue  only  with  the  sanction,  or,  if  deemed  necessary,  the  par- 
ticipation of  the  occupier  or  invader. 

7.  Martial  law  extends  to  property,  and  to  persons,  whether  they  are 
subjects  of  the  enemy  or  aliens  to  that  government. 


47°  APPENDIX    II. 

8.  Consuls,  among  American  and  European  nations,  are  not  diplomatic 
agents.  Nevertheless,  their  offices  and  persons  will  be  subjected  to  mar 
tial  law  in  cases  of  urgent  necessity  only  :  their  property  and  business 
are  not  exempted.  Any  delinquency  they  commit  against  the  established 
military  rule  may  be  punished  as  in  the  case  of  any  other  inhabitant,  and 
such  punishment  furnishes  no  reasonable  ground  for  international  com- 
plaint. 

9.  The  functions  of  Ambassadors,  Ministers,  or  other  diplomatic  agents, 
accredited  by  neutral  powers  to  the  hostile  government,  cease,  so  far  as 
regards  the  displaced  government ;  but  the  conquering  or  occupying 
power  usually  recognizes  them  as  temporarily  accredited  to  itself. 

10.  Martial  law  affects  chiefly  the  police  and  collection  of  public  reve- 
nue and  taxes,  whether  imposed  by  the  expelled  government  or  by  the 
invader,  and  refers  mainly  to  the  support  and  efficiency  of  the  army,  its 
safety,  and  the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty  and  bad  faith 
concerning  engagements  concluded  with  the  enemy  during  the  war,  but 
also  the  breaking  of  stipulations  solemnly  contracted  by  the  belligerents 
in  time  of  peace,  and  avowedly  intended  to  remain  in  force  in  case  of  war 
between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transactions  for  individual  gain  ; 
all  acts  of  private  revenge,  or  connivance  at  such  acts. 

Offences  to  the  contrary  shall  be  severely  punished,  and  especially  so  if 
committed  by  officers. 

12.  Whenever  feasible,  martial  law  is  carried  out  in  cases  of  individual 
offenders  by  military  courts ;  but  sentences  of  death  shall  be  executed 
only  with  the  approval  of  the  chief  executive,  provided  the  urgency  of 
the  case  does  not  require  a  speedier  execution,  and  then  only  with  the 
approval  of  the  chief  commander. 

13.  Military  jurisdiction  is  of  two  kinds  :  first,  that  which  is  conferred 
and  defined  by  statute  ;  second,  that  which  is  derived  from  the  common 
law  of  war.  Military  offences  under  the  statute  law  must  be  tried  in  the 
manner  therein  directed  ;  but  military  offences  which  do  not  come  within 
the  statute  must  be  tried  and  punished  under  the  common  law  of  war. 
The  character  of  the  courts  which  exercise  these  jurisdictions  depends 
upon  the  local  laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts-mar- 
tial;  while  cases  which  do  not  come  within  the  "  Rules  and  Articles  of 
War,"  or  the  jurisdiction  conferred  by  statute  on  courts-martial,  are  tried 
by  military  commissions. 

14.  Military  necessity,  as  understood  by  modern  civilized  nations,  con- 
sists in  the  necessity  of  those  measures  which  are  indispensable  for  secur- 
ing the  ends  of  the  war,  and  which  are  lawful  according  to  the  modern 
law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or  limb  of 
armed  enemies,  and  of  other  persons  whose  destruction  is  incidentally 
unavoidable  in  the  armed  contests  of  the  war ;  it  allows  of  the  capturing 


APPENDIX    II.  471 

of  every  armed  enemy,  and  every  enemy  of  importance  to  the  hostile 
government,  or  of  peculiar  danger  to  the  captor  ;  it  allows  of  all  destruction 
of  property,  and  obstruction  of  the  ways  and  channels  of  traffic,  travel,  or 
communication,  and  of  all  withholding  of  sustenance  or  means  of  life 
from  the  enemy  ;  of  the  appropriation  of  whatever  an  enemy's  country 
affords  necessary  for  the  subsistence  and  safety  of  the  army,  and  of  such 
deception  as  does  not  involve  the  breaking  of  good  faith  either  positively 
pledged,  regarding  agreements  entered  into  during  the  war,  or  supposed 
by  the  modern  law  of  war  to  exist.  Men  who  take  up  arms  against  one 
another  in  public  war  do  not  cease  on  this  account  to  be  moral  beings, 
responsible  to  one  another,  and  to  God. 

16.  Military  necessity  does  not  admit  of  cruelty — that  is,  the  infliction 
of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of  maiming  or 
wounding  except  in  fight,  nor  of  torture  to  extort  confessions.  It  does 
not  admit  of  the  use  of  poison  in  any  way,  nor  of  the  wanton  devastation 
of  a  district.  It  admits  of  deception,  but  disclaims  acts  of  perfidy  ;  and, 
in  general,  military  necessity  does  not  include  any  act  of  hostility  which 
makes  the  return  to  peace  unnecessarily  difficult. 

17.  War  is  not  carried  on  by  arms  alone.  It  is  lawful  to  starve  the  hos- 
tile belligerent,  armed  or  unarmed,  so  that  it  leads  to  the  speedier  subjec- 
tion of  the  enemy. 

18.  When  a  commander  of  a  besieged  place  expels  the  non-combatants, 
in  order  to  lessen  the  number  of  those  who  consume  his  stock  of  provi- 
sions, it  is  lawful,  though  an  extreme  measure,  to  drive  them  back,  so  as 
to  hasten  on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their  in- 
tention to  bombard  a  place,  so  that  the  non-combatants,  and  especially 
the  women  and  children,  may  be  removed  before  the  bombardment  com- 
mences. But  it  is  no  infraction  of  the  common  law  of  war  to  omit  thus 
to  inform  the  enemy.     Surprise  may  be  a  necessity. 

20.  Public  war  is  a  state  of  armed  hostility  between  sovereign  nations 
or  governments.  It  is  a  law  and  requisite  of  civilized  existence  that  men 
live  in  political,  continuous  societies,  forming  organized  units,  called 
states  or  nations,  whose  constituents  bear,  enjoy,  and  suffer,  advance  and 
retrograde  together,  in  peace  and  in  war. 

21.  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy,  as  one 
of  the  constituents  of  the  hostile  state  or  nation,  and  as  such  is  subjected 
to  the  hardships  of  the  war. 

22.  Nevertheless,  as  civilization  has  advanced  during  the  last  centuries, 
so  has  likewise  steadily  advanced,  especially  iu  war  on  land,  the  distinc- 
tion between  the  private  individual  belonging  to  a  hostile  country  and 
the  hostile  country  itself,  with  its  men  in  arms.  The  principle  has  been 
more  and  more  acknowledged  that  the  unarmed  citizen  is  to  be  spared  in 
person,  property,  and  honor  as  much  as  the  exigencies  of  war  will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried  off  to 
distant  parts,  and  the  inoffensive  individual  is  as  little  disturbed  in  his 


472  APPENDIX    II. 

private  relations  as  the  commander  of  the  hostile  troops  can  afford  to  grant 
in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues  to  be 
with  barbarous  armies,  that  the  private  individual  of  the  hostile  country 
is  destined  to  suffer  every  privation  of  liberty  and  protection,  and  every 
disruption  of  family  ties.      Protection  was,  and  still  is  with  uncivilized 

people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans  and  their  descendants  in 
other  portions  of  the  globe,  protection  of  the  inoffensive  citizen  of  the 
hostile  country  is  the  rule  ;  privation  and  disturbance  of  private  relations 
are  the  exceptions. 

26.  Commanding  generals  may  cause  the  magistrates  and  civil  officers 
of  the  hostile  country  to  take  the  oath  of  temporary  allegiance  or  an  oath 
of  fidelity  to  their  own  victorious  government  or  rulers,  and  they  may 
expel  every  one  who  declines  to  do  so.  But  whether  they  do  so  or  not  the 
people  and  their  civil  officers  owe  strict  obedience  to  them  as  long  as  they 
hold  sway  over  the  district  or  country  at  the  peril  of  their  lives. 

27.  The  law  of  war  can  no  more  wholly  dispense  with  retaliation  than 
can  the  law  of  nations,  of  which  it  is  a  branch.  Yet  civilized  nations 
acknowledge  retaliation  as  the  sternest  feature  of  war.  A  reckless  enemy 
often  leaves  to  his  opponent  no  other  means  of  securing  himself  against 
the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure  of  mere 
revenge,  but  only  as  a  means  of  protective  retribution,  and,  moreover, 
cautiously  and  unavoidably  ;  that  is  to  say,  retaliation  shall  only  be  resorted 
to  after  careful  inquiry  into  the  real  occurrence,  and  the  character  of  the 
misdeeds  that  may  demand  retribution. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  farther  and 
farther  from  the  mitigating  rules  of  regular  war,  and  by  rapid  steps  leads 
them  nearer  to  the  internecine  wars  of  savages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by  the  existence, 
at  one  and  the  same  time,  of  many  nations  and  great  governments  related 
to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition;  war  is  the  exception.  The  ultimate 
object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued  the  better  it  is  for  humanity. 
Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  coexistence  of  modern  nations,  and 
ever  since  wars  have  become  great  national  wars,  war  has  come  to  be 
acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain  great  ends 
of  state,  or  to  consist  in  defence  against  wrong ;  and  no  conventional 
restriction  of  the  modes  adopted  to  injure  the  enemy  is  any  longer  admit- 
ted ;  but  the  law  of  war  imposes  many  limitations  and  restrictions  on 
principles  of  justice,  faith,  and  honor. 


appendix  ii.  473 

Section  2. — Public  and  private  property  of  the  enemy. — Protection  of 
persons,  and  especially  of  women  ;  of  religion,  the  arts,  and  sciences. — 
Punishment  of  crimes  against  the  inhabitants  of  hostile  coimtries. 

1.  A  victorious  army  appropriates  all  public  money,  seizes  all  public 
movable  property  until  further  direction  by  its  Government,  and  seques- 
ters for  its  own  benefit  or  of  that  of  its  Government  all  the  revenues  of 
real  property  belonging  to  the  hostile  Government  or  nation.  The  title 
to  such  real  property  remains  in  abeyance  during  military  occupation, 
and  until  the  conquest  is  made  complete. 

2.  A  victorious  army,  by  the  martial  power  inherent  in  the  same,  may 
suspend,  change,  or  abolish,  as  far  as  the  martial  power  extends,  the  rela- 
tions which  arise  from  the  services  due,  according  to  the  existing  laws  of 
the  invaded  country,  from  one  citizen,  subject  or  native  of  the  same,  to 
another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty  of 
peace  to  settle  the  permanency  of  this  change. 

3.  It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held  to  be  a 
serious  breach  of  the  law  of  war — to  force  the  subjects  of  the  enemy  into 
the  service  of  the  victorious  Government,  except  the  latter  should  pro- 
claim, after  a  fair  and  complete  conquest  of  the  hostile  country  or  district, 
that  it  is  resolved  to  keep  the  country,  district,  or  place  permanently  as 
its  own  and  make  it  a  portion  of  its  own  country. 

4.  As  a  general  rule,  the  property  belonging  to  churches,  to  hospitals, 
or  other  establishments  of  an  exclusively  charitable  character,  to  estab- 
lishments of  education,  or  foundations  for  the  promotion  of  knowledge, 
whether  public  schools,  universities,  academies  of  learning,  or  observato- 
ries, museums  of  the  fine  arts,  or  of  a  scientific  character,  such  property 
is  not  to  be  considered  public  property  in  the  sense  of  paragraph  1  ;  but 
it  may  be  taxed  or  used  when  the  public  service  may  require  it. 

5.  Classical  works  of  art,  libraries,  scientific  collections,  or  precious 
instruments,  such  as  astronomical  telescopes,  as  well  as  hospitals,  must  be 
secured  against  all  avoidable  injury,  even  when  they  are  contained  in 
fortified  places  whilst  besieged  or  bombarded. 

6.  If  such  works  of  art,  libraries,  collections,  or  instruments  belonging 
to  a  hostile  nation  or  Government  can  be  removed  without  injury,  the 
ruler  of  the  conquering  state  or  nation  may  order  them  to  be  seized  and 
removed  for  the  benefit  of  the  said  nation.  The  ultimate  ownership  is  to 
be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away  if  captured  by  the  armies  of 
the  United  States,  nor  shall  they  ever  be  privately  appropriated  or  wantonly 
destroyed  or  injured. 

7.  The  United  States  acknowledge  and  protect,  in  hostile  countries  occu- 
pied by  them,  religion  and  morality,  strictly  private  property,  the  persons 
of  the  inhabitants,  especially  those  of  women,  and  the  sacreduess  of 
domestic  relations.    Offenses  to  the  contrary  shall  be  rigorously  punished. 


474  APPENDIX    II. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader  to 
tax  the  people  or  their  property,  to  levy  forced  loans,  to  billet  soldiers,  or 
to  appropriate  property,  especially  houses,  lands,  boats,  or  ships,  and 
churches,  for  temporary  and  military  uses. 

8.  Private  property,  unless  forfeited  by  crimes  or  by  offences  of  the  owner, 
can  be  seized  only  by  way  of  military  necessity,  for  the  support  or  other 
benefit  of  the  army  or  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  receipts  to 
be  given,  which  may  serve  the  spoliated  owner  to  obtain  indemnity. 

9.  The  salaries  of  civil  officers  of  the  hostile  Government  who  remain 
in  the  invaded  territory  and  continue  the  work  of  their  offices  and  can 
continue  it  according  to  the  circumstances  arising  out  of  the  war — such 
as  judges,  administrative  or  police  officers,  officers  of  city  or  communal 
governments — are  paid  from  the  public  revenue  of  the  invaded  territory 
until  the  military  government  has  reason  wholly  or  partially  to  discontinue 
it.  Salaries  or  incomes  connected  with  purely  honorary  titles  are  always 
stopped. 

10.  There  exists  no  law  or  bodj-  of  authoritative  rules  of  action  between 
hostile  armies,  except  that  branch  of  the  law  of  nature  and  nations  which 
is  called  the  law  and  usages  of  war  on  land. 

11.  All  municipal  law  of  the  ground  on  which  the  armies  stand  or  of 
the  countries  to  which  they  belong,  is  silent  and  of  no  effect  between 
armies  in  the  field. 

12.  Slavery,  complicating  and  confounding  the  ideas  of  property  (that 
is,  of  a  thing),  and  of  personality  (that  is,  of  humanity),  exists  according 
to  municipal  or  local  law  only.  The  law  of  nature  and  nations  has  never 
acknowledged  it.  The  digest  of  the  Roman  law  enacts  the  early  dictum 
of  the  pagan  jurist  that,  "so  far  as  the  law  of  nature  is  concerned,  all 
men  are  equal."  Fugitives  escaping  from  a  country  in  which  they  were 
slaves,  villains,  or  serfs,  into  another  country,  have  for  centuries  past  been 
held  free  and  acknowledged  free  by  judicial  decisions  of  European  coun- 
tries, even  though  the  municipal  law  of  the  country  in  which  the  slave 
had  taken  refuge  acknowledged  slavery  within  its  own  dominions. 

13.  Therefore,  in  a  war  between  the  United  States  and  a  belligerent 
which  admits  of  slavery,  if  a  person  held  in  bondage  by  that  belligerent 
be  captured  by  or  come  as  a  fugitive  under  the  protection  of  the  military 
forces  of  the  United  States,  such  person  is  immediately  entitled  to  the 
rights  and  privileges  of  a  free  man.  To  return  such  person  into  slavery 
would  amount  to  euslaviug  a  free  person,  and  neither  the  United  States 
nor  any  officer  under  their  authority  can  enslave  any  human  being.  More- 
over, a  person  so  made  free  by  the  law  of  war  is  uuder  the  shield  of  the 
law  of  nations,  and  the  former  owner  or  State  can  have,  by  the  law  of 
post-liminy,  no  belligerent  lieu  or  claim  of  service. 

14.  All  wanton  violence  committed  against  persons  in  the  invaded 
country,  all  destruction  of  property  not  commanded  by  the  authorized 
officer,  all  robbery,  all  pillage  or  sacking,  even  after  taking  a  place  by 


APPENDIX    II.  475 

main  force,  all  rape,  wounding,  maiming,  or  killing  of  such  inhabitants 
are  prohibited  under  the  penalty  of  death  or  such  other  severe  punishment 
as  may  seem  adequate  for  the  gravity  of  the  offence. 

A  soldier,  officer,  or  private  in  the  act  of  committing  such  violence  and 
disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be  lawfully 
killed  on  the  spot  by  such  superior. 

15.  All  captures  and  booty  belong,  according  to  the  modern  law  of  war, 
primarily  to  the  Government  of  the  captor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be  claimed  under 
local  law. 

16.  Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their  position 
or  power  in  the  hostile  country  for  private  gain,  not  even  for  commercial 
transactions  otherwise  legitimate.  Offences  to  the  contrary  committed  by 
commissioned  officers  will  be  punished  with  cashiering  or  such  other  pun- 
ishment as  the  nature  of  the  offence  may  require  ;  if  by  soldiers,  they  shall 
be  punished  according  to  the  nature  of  the  offence. 

17.  Crimes  punishable  by  all  penal  codes,  such  as  arson,  murder,  maim- 
ing, assaults,  highway  robbery,  theft,  burglary,  fraud,  forgery,  and  rape, 
if  committed  by  an  American  soldier  in  a  hostile  country  against  its  inhab- 
itants, are  not  only  punishable  as  at  home,  but  in  all  cases  in  which  death 
is  not  inflicted  the  severer  punishment  shall  be  preferred. 

Section  3. — Deserters. — Prisoners  of  war. — Hostages. — Booty  on  the 
battle-field. 

1.  Deserters  from  the  American  army,  having  entered  the  service  of 
the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the  United 
States,  whether  by  capture,  or  being  delivered  up  to  the  American  army; 
and  if  a  deserter  from  the  enemy,  having  taken  service  in  the  army  of  the 
United  States,  is  captured  by  the  enemy,  and  punished  by  them  with 
death  or  otherwise,  it  is  not  a  breach  against  the  law  and  usages  of  war, 
requiring  redress  or  retaliation. 

2.  A  prisoner  of  war  is  a  public  enemy  armed  or  attached  to  the  hostile 
army  for  active  aid,  who  has  fallen  into  the  hands  of  the  captor,  either 
fighting  or  wounded,  on  the  field  or  in  the  hospital,  by  individual  sur- 
render or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms  ;  all  men  who  belong  to  the 
rising  en  masse  of  the  hostile  country  ;  all  those  who  are  attached  to  the 
army  for  its  efficiency  and  promote  directly  the  object  of  the  war,  except 
such  as  are  hereinafter  provided  for  ;  all  disabled  men  or  officers  on  the 
field  or  elsewhere,  if  captured  ;  all  enemies  who  have  thrown  away  their 
arms  and  ask  for  quarter,  are  prisoners  of  war,  aud  as  such  exposed  to  the 
inconveniences  as  well  as  entitled  to  the  privileges  of  a  prisoner  of  war. 

3.  Moreover,  citizens  who  accompany  an  army  for  whatever  purpose, 
such  as  sutlers,  editors,  or  reporters  of  journals,  or  contractors,  if  cap- 
tured, may  be  made  prisoners  of  war,  and  be  detained  as  such. 

The  monarch  and  members  of  the  hostile  reigning  family,  male  or 
female,  the  chief,  and  chief  officers  of  the  hostile  government,  its  diplo- 


476  APPENDIX    II. 

matic  agents,   and  all   persons  who  are  of  particular   and   singular  use 
and  benefit  to  the  hostile  army  or  its   government,  are.  if  captured   on 
belligerent  ground,  and  if  unprovided  with  a  safe  conduct  granted  by  the 
captor's  government,  prisoners  of  war. 
4,  5.   (See  text,  p.  90.) 

6.  The  enemy's  chaplains,  officers  of  the  medical  staff,  apothecaries, 
hospital  nurses  and  servants,  if  they  fall  into  the  hands  of  the  American 
army,  are  not  prisoners  of  war,  unless  the  commander  has  reasons  to  re- 
tain them.  In  this  latter  case,  or  if,  at  their  own  desire,  they  are  allowed 
to  remain  with  their  captured  companions,  they  are  treated  as  prisoners 
of  war,  and  may  be  exchanged  if  the  commander  sees  fit. 

7.  A  hostage  is  a  person  accepted  as  a  pledge  for  the  fufillment  of  an 
agreement  concluded  between  belligerents  during  the  war,  or  in  conse- 
quence of  a  war.     Hostages  are  rare  in  the  present  age. 

8.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war,  accord- 
ing to  rank  and  condition,  as  circumstances  may  admit. 

9.  A  prisoner  of  war  is  subject  to  no  punishment  for  being  a  public 
enemy,  nor  is  any  revenge  wreaked  upon  him  by  the  intentional  infliction 
of  any  suffering,  or  disgrace,  by  cruel  imprisonment,  want  of  food,  by 
mutilation,  death,  or  any  other  barbarity. 

10.  vSo  soon  as  a  man  is  armed  by  a  sovereign  government  and  takes  a 
soldier's  oath  of  fidelity,  he  is  a  belligerent  ;  his  killing,  wounding,  or 
other  warlike  acts,  are  no  individual  crimes  or  offences.  No  belligerent 
has  a  right  to  declare  that  enemies  of  a  certain  class,  color,  or  condition, 
when  properly  organized  as  soldiers,  will  not  be  treated  by  him  as  public 
enemies. 

11.  The  law  of  nations  knows  of  no  distinction  of  color,  and  if  an 
enemy  of  the  United  States  should  enslave  and  sell  any  captured  persons 
of  their  army,  it  would  be  a  case  for  the  severest  retaliation,  if  not  re- 
dressed upon  complaint. 

The  United  States  can  not  retaliate  by  enslavement  ;  therefore  death 
must  be  the  retaliation  for  this  crime  against  the  law  of  nations. 

12.  A  prisoner  of  war  remains  answerable  for  his  crimes  committed 
against  the  captor's  army  or  people,  committed  before  he  was  captured, 
and  for  which  he  has  not  been  punished  by  his  own  authorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory  measures. 

13.  It  is  against  the  usage  of  modern  war  to  resolve,  in  hatred  and  re- 
venge, to  give  no  quarter.  No  body  of  troops  has  the  right  to  declare 
that  it  will  not  give,  and  therefore  will  not  expect,  quarter;  but  a  com- 
mander is  permitted  to  direct  his  troops  to  give  no  quarter,  in  great  straits, 
when  his  own  salvation  makes  it  impossible  to  cumber  himself  with 
prisoners. 

14.  Troops  that  give  no  quarter  have  no  right  to  kill  enemies  already 
disabled  on  the  ground,  or  prisoners  captured  by  other  troops. 

15.  All  troops  of  the  enemy  known  or  discovered  to  give  no  quarter  in 
general,  or  to  any  portion  of  the  army,  receive  none. 


APPENDIX    II.  477 

16.  Troops  who  fight  in  the  uniform  of  their  enemies,  without  any 
plain,  striking,  and  uniform  mark  of  distinction  of  their  own,  can  expect 
no  quarter. 

17.  If  American  troops  capture  a  train  containing  uniforms  of  the  enemy, 
and  the  commander  considers  it  advisable  to  distribute  them  for  use 
among  his  men,  some  striking  mark  or  sign  must  be  adopted  to  distin- 
guish the  American  soldier  from  the  enemy. 

iS.  The  use  of  the  enemy's  national  standard,  flag,  or  other  emblem  of 
nationality,  for  the  purpose  of  deceiving  the  enemy  in  battle,  is  an  act  of 
perfidy  by  which  they  lose  all  claim  to  the  protection  of  the  laws  of  war. 

19.  Quarter  having  been  given  to  an  enemy  by  American  troops,  under 
a  misapprehension  of  his  true  character,  he  may,  nevertheless,  be  ordered 
to  suffer  death  if,  within  three  days  after  the  battle,  it  be  discovered  that 
he  belongs  to  a  corps  which  gives  no  quarter. 

20.  The  law  of  nations  allows  every  sovereign  government  to  make  war 
upon  another  sovereign  state,  and  therefore  admits  of  no  rules  or  laws 
different  from  those  of  regular  warfare,  regarding  the  treatment  of  pris- 
oners of  war,  although  they  may  belong  to  the  army  of  a  government 
which  the  captor  may  consider  as  a  wanton  and  unjust  assailant. 

2i.  Modern  wars  are  not  internecine  wars,  in  which  the  killing  of  the 
enemy  is  the  object.  The  destruction  of  the  enemy  in  modern  war,  and, 
indeed,  modern  war  itself,  are  means  to  obtain  that  object  of  the  belliger- 
ent which  lies  beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

22.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon  except  to 
drive  them  in,  or  when  a  positive  order,  special  or  general,  has  been  issued 
to  that  effect. 

23.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells,  or  food,  or 
arms,  is  wholly  excluded  from  modern  warfare.  He  that  uses  it  puts  him- 
self out  of  the  pale  of  the  law  and  usages  of  war. 

24.  Whoever  intentionally  inflicts  additional  wounds  on  an  enemy  al- 
ready wholly  disabled,  or  kills  such  an  enemy,  or  who  orders  or  encour- 
ages soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted,  whether  he 
belongs  to  the  army  of  the  United  States,  or  is  an  enemy  captured  after 
having  committed  his  misdeed. 

25.  Money  and  other  valuables  on  the  person  of  a  prisoner,  such  as 
watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the  Ameri- 
can army  as  the  private  property  of  the  prisoner,  and  the  appropriation  of 
such  valuables  or  money  is  considered  dishonorable,  and  is  prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  prisoners,  or  in 
their  possession,  they  shall  be  taken  from  them,  and  the  surplus,  after  pro- 
viding for  their  own  support,  appropriated  for  the  use  of  the  arm}-,  under 
the  direction  of  the  commander,  unless  otherwise  ordered  by  the  govern- 
ment. Nor  can  prisoners  claim,  as  private  property,  large  sums  found  and 
captured  in  their  train,  although  they  have  been  placed  in  the  private  lug- 
gage of  the  prisoners. 


478  APPENDIX   II. 

26.  All  officers,  when  captured,  must  surrender  their  side  arms  to  the 
captor.  They  may  be  restored  to  the  prisoner  in  marked  cases,  by  the 
commander,  to  signalize  admiration  of  his  distinguished  bravery,  or  ap- 
probation of  his  humane  treatment  of  prisoners  before  his  capture.  The 
captured  officer  to  whom  they  may  be  restored  can  not  wear  them  during 
captivity. 

27.  A  prisoner  of  war,  being  a  public  enemy,  is  the  prisoner  of  the  gov- 
ernment, and  not  of  the  captor.  No  ransom  can  be  paid  by  a  prisoner  of 
war  to  his  individual  captor,  or  to  any  officer  in  command.  The  govern- 
ment alone  releases  captives,  according  to  rules  prescribed  by  itself. 

28.  Prisoners  of  war  are  subject  to  confinement  or  imprisonment  such 
as  may  be  deemed  necessary  on  account  of  safety,  but  they  are  to  be  sub- 
jected to  no  other  intentional  suffering  or  indignity.  The  confinement 
and  mode  of  treating  a  prisoner  may  be  varied  during  his  captivity  ac- 
cording to  the  demands  of  safety. 

29.  Prisoners  of  war  shall  be  fed  upon  plain  and  wholesome  food,  when- 
ever practical,  and  treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit  of  the  captor's  govern- 
ment, according  to  their  rank  and  condition. 

30.  A  prisoner  of  war  who  escapes  may  be  shot,  or  otherwise  killed,  in 
his  flight  ;  but  neither  death  nor  any  other  punishment  shall  be  inflicted 
upon  him  simply  for  his  attempt  to  escape,  which  the  law  of  war  does 
not  consider  a  crime.  Stricter  means  of  security  shall  be  used  after  an 
unsuccessful  attempt  at  escape 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a  united 
or  general  escape,  the  conspirators  may  be  rigorously  punished,  even  with 
death ;  and  capital  punishment  may  also  be  inflicted  upon  prisoners  of 
war  discovered  to  have  plotted  rebellion  against  the  authorities  of  the 
captors,  whether  in  union  with  fellow  prisoners  or  other  persons. 

31.  If  prisoners  of  war,  having  given  no  pledge  nor  made  any  promise 
on  their  honor,  forcibly  or  otherwise  escape,  and  are  captured  again  in 
battle,  after  having  rejoined  their  own  army,  they  shall  not  be  punished 
for  their  escape,  but  shall  be  treated  as  simply  prisoners  of  war,  although 
they  will  be  subjected  to  stricter  confinement. 

32.  Every  captured  wounded  enemy  shall  be  medically  treated,  accord- 
ing to  the  ability  of  the  medical  staff. 

33.  Honorable  men,  when  captured,  will  abstain  from  giving  to  the 
enemy  information  concerning  their  own  army,  and  the  modern  law  of 
war  permits  no  longer  the  use  of  any  violence  against  prisoners  in  order 
to  extort  the  desired  information,  or  to  punish  them  for  having  given  false 
information. 

Section  4. — Partisans. — Armed  enemies    not   belonging  to  the  hostile 
army. — Scouts. — Armed  prowlers. —  War  rebels. 
1.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their  army, 
but  belonging  to  a  corps  which  acts  detached  from  the  main  body  for  the 


APPENDIX    II.  479 

purpose  of  making  inroads  into  the  territory  occupied  by  the  enemy.     If 
captured,  they  are  entitled  to  all  the  privileges  of  the  prisoner  of  war. 

2.  (Seep.  S3,  text.) 

3.  Scouts  or  single  soldiers,  if  disguised  in  the  dress  of  the  country,  or 
in  the  uniform  of  the  army  hostile  to  their  own,  employed  in  obtaining 
information,  if  found  within  or  lurking  about  the  lines  of  the  captor, 
are  treated  as  spies,  and  suffer  death. 

4.  Armed  prowlers,  by  whatever  names  they  may  be  called,  or  persons 
of  the  enemy's  territory,  who  steal  within  the  lines  of  the  hostile  army 
for  the  purpose  of  robbing,  killing,  or  of  destroying  bridges,  roads,  or 
canals,  or  of  robbing  or  destroying  the  mail,  or  of  cutting  the  telegraph 
wires,  are  not  entitled  to  the  privileges  of  prisoner  of  war. 

5.  War  rebels  are  persons  within  an  occupied  territory  who  rise  in  arms 
against  the  occupying  or  conquering  army,  or  against  the  authorities 
established  by  the  same.  If  captured,  they  may  suffer  death,  whether 
they  rise  singly,  in  small  or  large  bauds,  and  whether  called  upon  to  do 
so  by  their  own,  but  expelled,  government  or  not.  They  are  not  prison- 
of  war  ;  nor  are  they,  if  discovered  and  secured  before  their  conspiracy 
has  matured  to  an  actual  rising,  or  to  armed  violence. 

Section   5. — Safe  conduct. — Spies. —  War   traitors. — Captured    messen- 
gers.— Abuse  of  the  flag  of  truce. 

1.  All  intercourse  between  the  territories  occupied  by  belligerent  armies, 
whether  by  traffic,  by  letter,  by  travel,  or  in  any  other  way,  ceases.  This 
is  the  general  rule,  to  be  observed  without  special  proclamation. 

Exceptions  to  this  rule, whether  by  safe  conduct,  or  permission  to  trade 
on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel  from  one 
territory  into  the  other,  can  take  place  only  according  to  agreement  ap- 
proved by  the  government,  or  by  the  highest  military  authority. 

Contraventions  of  this  rule  are  highly  punishable. 

2.  Ambassadors,  and  all  other  diplomatic  agents  of  neutral  powers,  ac- 
credited to  the  enemy,  may  receive  safe  conducts  through  the  territories 
occupied  by  the  belligerents,  unless  there  are  military  reasons  to  the  con- 
trary, and  unless  they  may  reach  the  place  of  their  destination  con- 
veniently by  another  route.  It  implies  no  international  affront  if  the 
safe  conduct  is  declined.  Such  passes  are  usually  given  by  the  supreme 
authority  of  the  State,  and  not  by  subordinate  officers. 

3.  A  spy  is  a  person  who  secretly,  in  disguise  or  under  false  pretense, 
seeks  information  with  the  intention  of  communicating  it  to  the  enemy. 

The  spy  is  punishable  with  death  by  hanging  by  the  neck,  whether  or 
not  he  succeed  in  obtaining  the  information  or  in  conveying  it  to  the 
enemy. 

4.  If  a  citizen  of  the  United  States  obtains  information  in  a  legitimate 
manner,  and  betrays  it  to  the  enemy,  be  he  a  military  or  civil  officer,  or  a 
private  citizen,  he  shall  suffer  death. 


480  APPKNDIX    II. 

5.  A  traitor  under  the  law  of  war,  or  a  war  traitor,  is  a  person  in  a  place 
or  district  under  martial  law  who,  unauthorized  by  the  military  com- 
mander, gives  information  of  any  kind  to  the  enemy,  or  holds  intercourse 
with  him. 

6.  The  war  traitor  is  always  severely  punished.  If  his  offence  consists 
in  betraying  to  the  enemy  anything  concerning  the  condition,  safety, 
operations,  or  plans  of  the  troops  holding  or  occupying  the  place  or 
district,  his  punishment  is  death. 

7.  If  the  citizen  or  subject  of  a  country  or  place  invaded  or  conquered 
gives  information  to  his  own  government,  from  which  he  is  separated  by 
the  hostile  army,  or  to  the  army  of  his  government,  he  is  a  war  traitor, 
and  death  is  the  penalty  of  his  offence. 

8.  All  armies  in  the  field  stand  in  need  of  guides,  and  impress  them  if 
they  can  not  obtain  them  otherwise. 

9.  No  person  having  been  forced  by  the  enemy  to  serve  as  guide  is 
punishable  for  having  done  so. 

10.  If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves  as  a 
guide  to  the  enemy,  or  offers  to  do  so,  he  is  deemed  a  war  traitor,  and 
shall  suffer  death. 

11.  A  citizen  serving  voluntarily  as  a  guide  against  his  own  country 
commits  treason,  and  will  be  dealt  with  according  to  the  law  of  his 
country. 

12.  Guides,  when  it  is  clearly  proved  that  they  have  misled  intention- 
ally, may  be  put  to  death. 

13.  All  unauthorized  or  secret  communication  with  the  enemy  is  con- 
sidered treasonable  by  the  law  of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or  foreign  visitors 
in  the  same,  can  claim  no  immunity  from  this  law.  They  may  communicate 
with  foreign  parts,  or  with  the  inhabitants  of  the  hostile  country,  so  far  as 
the  military  authority  permits,  but  no  further.  Instant  expulsion  from 
the  occupied  territory  would  be  the  very  least  punishment  for  the  infrac- 
tion of  this  rule. 

14.  A  messenger  carrying  written  dispatches  or  verbal  messages  from 
one  portion  of  the  army,  or  from  a  besieged  place  to  another  portion  of 
the  same  army  or  its  Government,  if  armed  and  in  the  uniform  of  his 
army,  and  if  captured  while  doing  so  in  the  territory  occupied  by  the 
enemy,  is  treated  by  the  captor  as  a  prisoner  of  war.  If  not  in  uniform, 
nor  a  soldier,  the  circumstances  connected  with  his  capture  must  deter- 
mine the  disposition  that  shall  be  made  of  him. 

15.  A  messenger  or  agent  who  attempts  to  steal  through  the  territory 
occupied  by  the  enemy,  to  further  in  any  manner  the  interests  of  the 
enemy,  if  captured,  is  not  entitled  to  the  privileges  of  the  prisoner  of  war, 
and  may  be  dealt  with  according  to  the  circumstances  of  the  case. 

16.  While  deception  in  war  is  admitted  as  a  just  and  necessary  means 
of  hostility,  and  is  consistent  with  honorable  warfare,  the  common  law  of 


APPENDIX    II.  481 

war  allows  even  capital  punishment  for  clandestine  or  treacherous  attempts 
to  injure  an  enemy,  because  they  are  so  dangerous,  and  it  is  so  difficult  to 
guard  against  them. 

17.  The  law  of  war,  like  the  criminal  law  regarding  other  offences. 
makes  no  difference  on  account  of  the  difference  of  sexes  concerning  the 
spy,  the  war  traitor,  or  the  war  rebel . 

18.  Spies,  w7ar  traitors,  and  war  rebels  are  not  exchanged  according  to 
the  common  law  of  war.  The  exchange  of  such  persons  would  require  a 
special  cartel  authorized  by  the  Government,  or,  at  a  great  distance  from 
it,  by  the  chief  commander  of  the  army  in  the  field. 

19.  A  successful  spy  or  war  traitor  safely  returned  to  his  own  army  and 
afterward  captured  as  an  enemy  is  not  subject  to  punishment  for  his  acts 
as  a  spy  or  war  traitor,  but  he  may  be  held  in  closer  custody  as  a  person 
individually  dangerous. 

Section  6. — Exchange of prisoners. — Flags oj 'truce. — Flags  of  protection. 

1.  Exchanges  of  prisoners  take  place  number  for  number,  rank  for  rank, 
wounded  for  wounded,  with  added  condition  for  added  condition  ;  such, 
lor  instance,  as  not  to  serve  for  a  certain  period. 

2.  In  exchanging  prisoners  of  war  such  numbers  of  persons  of  inferior 
rank  may  be  substituted  as  an  equivalent  for  one  of  superior  rank  as  m  ay 
be  agreed  upon  by  cartel,  which  requires  the  sanction  of  the  Government 
or  of  the  commander  of  the  army  in  the  field. 

3.  A  prisoner  of  war  is  in  honor  bound  truly  to  state  to  the  captor  his 
rank  ;  and  he  is  not  to  assume  a  lower  rank  than  belongs  to  him  in  order 
to  cause  a  more  advantageous  exchange,  nor  a  higher  rank  for  the  purpose 
of  obtaining  better  treatment. 

Offences  to  the  contrary  have  been  justly  punished  1)3'  the  commanders 
of  released  prisoners,  and  may  be  good  cause  for  refusing  to  release  such 
prisoners. 

4.  The  surplus  number  of  prisoners  of  war  remaining  after  an  exchange 
has  taken  place  is  sometimes  released  either  for  the  payment  of  a  stipu- 
lated sum  of  money,  or,  in  urgent  cases,  of  provision,  clothing,  or  other 
necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

5.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to  both 
belligerents.  If  no  general  cartel  has  been  concluded  it  can  not  be 
demanded  by  either  of  them.  No  belligerent  is  obliged  to  exchange 
prisoners  of  war. 

A  cartel  is  voidable  as  toon  as  either  party  has  violated  it. 

6.  No  exchange  of  prisoners  shall  be  made,  except  after  complete  cap- 
ture, and  after  an  accurate  account  of  them  and  a  list  of  the  captured 
officers  has  been  taken. 

7.  The  bearer  of  a  flag  of  truce  can  not  insist  upon  being  admitted.  He 
must  always  be  admitted  with  great  caution.  Unnecessary  frequency  is 
carefully  to  be  avoided. 


482  APPENDIX    II. 

8.  If  the  bearer  of  a  flag  of  truce  offers  himself  during  an  engagement 
he  can  be  admitted  as  a  very  rare  exception  only.  It  is  no  breach  of  good 
faith  to  retain  such  flag  of  truce  if  admitted  during  the  engagement.  Fir- 
ing is  not  required  to  cease  on  the  appearance  of  a  flag  of  truce  in  battle. 

9.  If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  an  engage- 
ment, is  killed  or  wounded,  it  furnishes  no  ground  of  complaint  whatever. 

10.  If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce  has  been 
abused  for  surreptitiously  obtaining  military  knowledge,  the  bearer  of  the 
flag  thus  abusing  his  sacred  character  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is  its 
sacredness,  that  while  its  abuse  is  an  especially  heinous  offence,  great 
caution  is  requisite,  on  the  other  hand,  in  convicting  the  bearer  of  a  flag 
of  truce  as  a  spy. 

ir.  It  is  customary  to  designate  by  certain  flags  (usually  yellow)  the 
hospitals  in  places  which  are  shelled,  so  that  the  besieging  enemy  may 
avoid  firing  on  them.  The  same  has  been  done  in  battles  when  hospitals 
are  situated  within  the  field  of  the  engagement. 

12.  Honorable  belligerents  often  request  that  the  hospitals  within  the 
territory  of  the  enemy  may  be  designated,  so  that  they  may  be  spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags  or  signals 
of  protection  as  much  as  the  contingencies  and  the  necessities  of  the  fight 
will  permit. 

13  It  is  justly  considered  an  act  of  bad  faith,  of  infamy,  or  fiendishness 
to  deceive  the  enemy  by  flags  of  protection.  Such  act  of  bad  faith  may 
be  good  cause  for  refusing  to  respect  such  flags. 

14.  The  besieging  belligerent  has  sometimes  requested  the  besieged  to 
designate  the  buildings  containing  collections  of  works  of  art,  scientific 
museums,  astronomical  observatories,  or  precious  libraries,  so  that  their 
destruction  maj'  be  avoided  as  much  as  possible. 

Section  8. —  The  parole. 

1.  Prisoners  of  war  may  be  released  from  captivity  by  exchange,  and, 
uuder  certain  circumstances,  also  by  parole. 

2.  The  term  parole  designates  the  pledge  of  individual  good  faith  and 
honor  to  do,  or  to  omit  doing,  certain  acts  after  he  who  gives  his  parole 
shall  have  been  dismissed,  wholly  or  partially,  from  the  power  of  the 
captor. 

3.  The  pledge  of  the  parole  is  always  an  individual ,  but  not  a  private  act. 

4.  The  parole  applies  chiefly  to  prisoners  of  war  whom  the  captor 
allows  to  return  to  their  country,  or  to  live  in  greater  freedom  within  the 
captor's  country  or  territory,  on  conditions  stated  in  the  parole. 

5.  Release  of  prisoners  of  war  by  exchange  is  the  general  rule  ;  release 
by  parole  is  the  exception. 

6.  Breaking  the  parole  is  punished  with  death  when  the  person  breaking 
the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must  be  kept  by  the 
belligerents. 


APPENDIX    II.  483 

7.  When  paroles  are  given  and  received  there  must  lie  an  exchange  of 
two  written  documents,  in  which  the  name  and  rank  of  the  paroled  indi- 
viduals are  accurately  and  truthfully  stated. 

8.  Commissioned  officers  only  are  allowed  to  give  their  parole,  and  they 
can  give  it  only  with  the  permission  of  their  superior,  as  long  as  the 
superior  in  rank  is  within  reach. 

9.  No  non-commissioned  officer  or  private  can  give  his  parole,  except 
through  an  officer.  Individual  paroles  not  given  through  an  officer  are 
not  only  void,  but  subject  the  individuals  giving  them  to  the  punishment 
of  death  as  deserters.  The  only  admissible  exception  is  where  individuals 
properly  separated  from  their  commands  have  suffered  long  confinement 
without  the  possibility  of  being  paroled  through  an  officer. 

10.  No  paroling  on  the  battle-field  ;  no  paroling  of  entire  bodies  of 
troops  after  a  battle ;  and  no  dismissal  of  large  numbers  of  prisoners 
with  a  general  declaration  that  they  are  paroled  is  permitted  or  of  any 
value. 

11.  In  capitulations  for  the  surrender  of  strong  places  or  fortified  camps 
the  commanding  officer,  in  cases  of  urgent  necessity,  ma}'  agree  that  the 
troops  under  his  command  shall  not  fight  again  during  the  war  unless 
exchanged. 

12.  The  usual  pledge  given  in  the  parole  is  not  to  serve  during  the 
existing  war  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field  against  the 
paroling  belligerent  or  his  allies  actively  engaged  in  the  same  war.  Tliese 
cases  of  breaking  the  parole  are  patent  acts,  and  can  be  visited  with  the 
punishment  of  death  ;  but  the  pledge  does  not  refer  to  internal  service, 
such  as  recruiting  or  drilling  the  recruits,  fortifying  places  not  besieged, 
quelling  civil  commotions,  fighting  against  belligerents  unconnected  with 
the  parolling  belligerents,  or  to  civil  or  diplomatic  service  for  which  the 
paroled  officer  may  be  employed. 

13.  If  the  Government  does  not  approve  of  the  parole  the  paroled  officer 
must  return  into  captivity,  and  should  the  enemy  refuse  to  receive  him  he 
is  free  of  his  parole. 

14.  A  belligerent  Government  may  declare,  by  a  general  order,  whether 
it  will  allow  paroling,  and  on  what  conditions  it  will  allow  it.  Such  order 
is  communicated  to  the  enemy. 

15.  No  prisoner  of  war  can  be  forced  by  the  hostile  government  to 
parole  himself,  and  no  government  is  obliged  to  parole  prisoners  of  war, 
or  to  parole  all  captured  officers,  if  it  paroles  any.  As  the  pledging  of 
the  parole  is  an  individual  act,  so  is  paroling,  on  the  other  hand,  an  act 
of  choice  on  the  part  of  the  belligerent. 

16.  The  commander  of  an  occupying  army  may  require  of  the  civil  of- 
ficers of  the  enemy,  and  of  its  citizens,  any  pledge  he  may  consider  neces- 
sary for  the  safety  or  security  of  his  army,  and  upon  their  failure  to  give 
it  he  may  arrest,  confine,  or  detain  them. 


484  APPENDIX    II. 

Section  S. — Armistice. — Capitulation. 

1.  A11  armistice  is  the  cessation  of  active  hostilities  for  a  period  agreed 
between  belligerents.  It  must  be  agreed  upon  in  writing,  and  duly  rati- 
fied by  the  highest  authorities  of  the  contending  parties. 

2.  If  an  armistice  be  declared,  without  conditions,  it  extends  no  further 
than  to  require  a  total  cessation  of  hostilities  along  the  front  of  both 
belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed,  and 
must  be  rigidly  adhered  to  by  both  parties.  If  either  party  violates  any 
express  condition,  the  armistice  may  be  declared  null  and  void  by  the 
other. 

3.  An  armistice  may  be  general,  and  valid  for  all  points  and  lines  of  the 
belligerents  ;  or  special,  that  is,  referring  to  certain  troops  or  certain 
localities  only. 

An  armistice  may  be  concluded  for  a  definite  time,  or  for  an  indefinite 
time,  during  which  either  belligerent  may  resume  hostilities  on  giving  the 
notice  agreed  upon  to  the  other. 

4.  The  motives  which  induce  the  one  or  the  other  belligerent  to  con- 
clude an  armistice,  whether  it  be  expected  to  be  preliminary  to  a  treaty 
of  peace,  or  to  prepare  during  the  armistice  for  a  more  vigorous  prose- 
cution of  the  war,  does  in  no  way  affect  the  character  of  the  armistice 
itself. 

5.  An  armistice  is  binding  upon  the  belligerents  from  the  day  of  the 
agreed  commencement;  but  the  officers  of  the  armies  are  responsible  from 
the  day  only  when  they  receive  official  information  of  its  existence. 

6.  Commanding  officers  have  the  right  to  conclude  armistices  binding 
on  the  district  over  which  their  command  extends,  but  such  armistice  is 
subject  to  the  ratification  of  the  superior  authority,  and  ceases  so  soon  as 
it  is  made  known  to  the  enemy  that  the  armistice  is  not  ratified  even  if  a 
certain  time  for  the  elapsing  between  giving  notice  of  cessation  and  the 
resumption  of  hostilities  should  have  been  stipulated  for. 

7.  It  is  incumbent  upon  the  contracting  parties  of  an  armistice  to 
stipulate  what  intercourse  of  persons  or  traffic  between  the  inhabitants  of 
the  territories  occupied  by  the  hostile  armies  shall  be  allowed,  if  any. 

If  nothing  is  stipulated  the  intercourse  remains  suspended,  as  during 
actual  hostilities. 

8.  An  armistice  is  not  a  partial  or  a  temporary  peace  ;  it  is  only  the 
suspension  of  military  operations  to  the  extent  agreed  upou  by  the  parties. 

9.  When  an  armistice  is  concluded  between  a  fortified  place  and  the 
army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this  subject  that 
the  besieger  must  cease  all  extentions,  perfection,  or  advance  of  his  at- 
tacking works  as  much  so  as  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among  martial  jurists,  whether 
the  besieged  have  the  right  to  repair  breaches  or  to  erect  new  works  of 
defence  within  the  place  during  an  armistice,  this  point  should  be  deter- 
mined by  express  agreement  between  the  parties. 


APPENDIX    II.  485 

10.  So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no  right  to 
demolish,  destroy,  or  injure  the  works,  arms,  stores,  or  ammunition,  in 
his  possession,  during  the  time  which  elapses  between  the  signing  and 
the  execution  of  the  capitulation,  unless  otherwise  stipulated  in  the  same. 

11.  When  an  armistice  is  clearly  broken  by  one  of  the  parties,  the  other 
party  is  released  from  all  obligation  to  observe  it. 

12.  Prisoners  taken  in  the  act  of  breaking  an  armistice  must  be  treated 
as  prisoners  of  war,  the  officer  alone  being  responsible  who  gives  the 
order  for  such  a  violation  of  an  armistice.  The  highest  authority  of  the 
belligerent  aggrieved  may  demand  redress  for  the  infraction  of  an  armis- 
tice. 

13.  Belligerents  sometimes  conclude  an  armistice  while  their  plenipo- 
tentiaries are  met  to  discuss  the  conditions  of  a  treaty  of  peace  ;  but 
plenipotentiaries  may  meet  without  a  preliininan-  armistice  ;  in  the  latter 
case,  the  war  is  carried  on  without  any  abatement. 

Section  9. — Assassination. 
1.  The  law  of  war  does  not  allow  proclaiming  either  an  individual  be- 
longing to  the  hostile  army,  or  a  citizen,  or  a  subject  of  the  hostile  gov- 
ernment, an  outlaw,  who  may  be  slain  without  trial  by  any  captor,  any 
more  than  the  modern  law  of  peace  allows  such  intentional  outlawry  ;  on 
the  coutrary,  it  abhors  such  outrage.  The  sternest  retaliation  should  fol- 
low the  murder  committed  in  consequence  of  such  proclamation,  made 
by  whatever  authority.  Civilized  nations  look  with  horror  upon  offers  of 
rewards  for  the  assassination  of  enemies  as  relapses  into  barbarism. 

Section  lo.—Insmreclion.— Civil  zvar.— Rebellion. 

1.  Insurrection  is  the  rising  of  people  in  arms  against  their  Government 
or  a  portion  of  it,  or  against  one  or  more  of  its  laws,  or  against  an  officer 
or  officers  of  the  Government.  It  may  be  confined  to  mere  armed  resist- 
ance, or  it  may  have  greater  ends  in  view. 

2.  Civil  war  is  war  between  two  or  more  portions  of  a  country  or  state, 
each  contending  for  the  mastery  of  the  whole,  and  each  claiming  to  be  the 
legitimate  Government.  The  term  is  also  sometimes  applied  to  war  of 
rebellion,  when  the  rebellious  provinces  or  portions  of  the  state  are  con- 
tiguous to  those  containing  the  seat  of  Government. 

3.  The  term  rebellion  is  applied  to  an  insurrection  of  large  extent,  and 
is  usually  a  war  between  the  legitimate  Government  of  a  country  and  por- 
tions of  provinces  of  the  same  who  seek  to  throw  off  their  allegiance  to  it 
and  set  up  a  Government  of  their  own. 

4.  When  humanity  induces  the  adoption  of  the  rules  of  regular  war 
toward  rebels,  whether  the  adoption  is  partial  or  entire,  it  does  in  no  way 
whatever  imply  a  partial  or  complete  acknowledgment  of  their  Govern- 
ment, if  they  have  set  up  one,  or  of  them  as  an  independent  or  sovereign 
power.  Neutrals  have  no  right  to  make  the  adoption  of  the  rules  of  war 
by  the  assailed  Government  toward  rebels  the  ground  of  their  own 
acknowledgment  of  the  revolted  people  as  an  independent  power. 


486  appendix  II. 

5.  Treating  captured  rebels  as  prisoners  of  war,  exchanging  them,  con- 
cluding of  cartels,  capitulations,  or  other  warlike  agreements  with  them  ; 
addressing  officers  of  a  rebel  army  by  the  rank  they  may  have  in  the 
same  ;  accepting  flags  of  truce  ;  or,  on  the  other  hand,  proclaiming  mar- 
tial law  in  their  territory,  or  levying  war  taxes  or  forced  loans,  or  doing 
any  other  act  sanctioned  or  demanded  by  the  law  and  usages  of  public 
war  between  sovereign  belligerents,  neither  proves  nor  establishes  an 
acknowledgment  of  the  rebellious  people  or  of  the  Government  which  they 
may  have  erected  as  a  public  or  sovereign  power.  Nor  does  the  adoption 
or  the  rules  of  war  toward  rebels  imply  an  engagement  with  them  extend- 
ing beyond  the  limits  of  these  rules.  It  is  victory  in  the  field  that  ends 
the  strife  and  settles  the  future  relations  between  the  contending  parties. 

6.  Treating  in  the  field  the  rebellious  enemy  according  to  the  law  and 
usages  of  war  has  never  prevented  the  legitimate  Government  from  trying 
the  leaders  of  the  rebellion  or  chief  rebels  for  high  treason,  and  from 
treating  them  accordingly,  unless  they  are  included  in  a  general  amnesty. 

7.  All  enemies  in  regular  war  are  divided  into  two  general  classes  ;  that 
is  to  say,  into  combatants  and  non-combatants,  or  unarmed  citizens  of  the 
hostile  Government. 

The  military  commander  of  the  legitimate  Government,  in  a  war  of 
rebellion,  distinguishes  between  the  loyal  citizen  and  the  revolted  portion 
of  the  country  and  the  disloyal  citizen.  The  disloyal  citizens  may  further 
be  classified  into  those  citizens  known  to  sympathize  with  the  rebellion 
without  positively  aiding  it,  and  those  who,  without  taking  up  arms,  give 
positive  aid  and  comfort  to  the  rebellious  enemy  without  being  bodily 
forced  thereto. 

8.  (See  text,  p.  80.) 

9.  Armed  or  unarmed  resistance  by  citizens  of  the  United  States  against 
the  lawful  movements  of  their  troops  is  levying  war  against  the  United 
States,  and  is  therefore  treason. 


[General  Orders  No.  3.] 

Headquarters  of  the  Army, 
Adjutant  General's  Office, 
M'asliiiigton,  January  14,  1892. 
1.  The    convention    between    the    United    States,    Baden,    Switzerland, 
Belgium,  Denmark,  Spain,   France,    Hesse,  Italy,  Netherlands,  Portugal, 
Prussia,    Wurtemberg,    Sweden,    Greece,     Great    Britain,    Meckleuburg- 
Schweriu,  Turkey,  Bavaria,  Austria,  Russia,  Persia,  Roumania,  Salvador, 
Montenegro,  Servia  ,  Bolivia,  Chili,  Argentine  Republic,  and    Peru,  with 
additional  articles  :  For  the  amelioration  of  the  wounded  in  armies  in  the 
field ;  concluded  August  22,  1864  ;  acceded  to  by  the  President  March  i, 
1882  ;  accession  concurred  in  by  the  Senate  March  16,  1882  ;  proclaimed 
as   to  the   original   convention,  but   with  reserve  as   to   the   additional 
articles,  July  26,  1882  ;  commonly  known  as  the  Geneva  Convention  is  as 
follows  : 


APPENDIX    II.  487 

ORIGINAL   CONVENTION. 

ARTICLE  I.  Ambulances  and  military  hospitals  shall  be  acknowledged 
to  be  neuter,  and  as  such  shall  be  protected  and  respected  by  belligerents 
so  long  as  any  sick  or  wounded  may  be  therein. 

Such  neutrality  shall  cease  if  the  ambulances  or  hospitals  should  be 
held  by  a  military  force. 

Art.  II.  Persons  employed  in  hospitals  and  ambulances,  comprising 
the  staff  for  superintendence,  medical  service,  administration,  transport 
of  wounded,  as  well  as  chaplains,  shall  participate  in  the  benefit  of  neu- 
trality, whilst  so  employed,  and  so  long  as  there  remain  any  wounded  to 
bring  in  or  to  succor. 

Art.  III.  The  persons  designated  in  the  preceding  article  may,  even 
after  occupation  by  the  enemy,  continue  to  fulfill  their  duties  in  the 
hospital  or  ambulance  which  they  serve,  or  may  withdraw  in  order  to  re- 
join the  corps  to  which  they  belong. 

Under  such  circumstances,  when  these  persons  shall  cease  from  their 
functions,  they  shall  be  delivered  by  the  occupying  army  to  the  outposts 
of  the  enemy. 

Art.  IV.  As  the  equipment  of  military  hospitals  remains  subject  to 
the  laws  of  war,  persons  attached  to  such  hospitals  can  not,  in  withdraw- 
ing, carry  away  any  articles  but  such  as  are  their  private  property. 

Under  the  same  circumstances  an  ambulance  shall,  on  the  contrary, 
retain  its  equipment. 

Art.  V.  Inhabitants  of  the  country  who  may  bring  help  to  the  wounded 
shall  be  respected,  and  shall  remain  free.  The  generals  of  the  belligerent 
powers  shall  make  it  their  care  to  inform  the  inhabitants  of  the  appeal 
addressed  to  their  humanity,  and  of  the  neutrality  which  will  be  the  con- 
sequence of  it. 

Any  wounded  man  entertained  and  taken  care  of  in  a  house  shall  be 
considered  as  a  protection  thereto.  Any  inhabitant  who  shall  have  enter- 
tained wounded  men  in  his  house  shall  be  exempted  from  the  quartering 
of  troops,  as  well  as  from  a  part  of  the  contributions  of  war  which  may 
be  imposed. 

Art.  VI.  Wounded  or  sick  soldiers  shall  be  entertained  and  taken  care 
of,  to  whatever  nation  they  may  belong. 

Commauders-in-chief  shall  have  the  power  to  deliver  immediately  to 
the  outposts  of  the  enemy  soldiers  who  have  been  wounded  in  an  engage- 
ment, when  circumstances  permit  this  to  be  done,  and  with  the  consent 
of  both  parties. 

Those  who  are  recognized,  after  their  wounds  are  healed,  as  incapable 
of  serving,  shall  be  sent  back  to  their  country. 

The  others  may  also  be  sent  back,  on  condition  of  not  again  bearing 
arms  during  the  continuance  of  the  war. 

Evacuations,  together  with  the  persons  under  whose  directions  they 
take  place,  shall  be  protected  by  an  absolute  neutrality. 

Art.  VII.  A  distinctive  and  uniform  flag  shall  be  adopted  for  hospitals, 
ambulances,  and  evacuations.    It  must,  on  every  occasion,  be  accompanied 


4<s-s  APPENDIX    II. 

by  tht  national  flag.  All  arm-badge  (brassard)  shall  also  be  allowed  for 
individuals  neutralized,  but  the  delivery  thereof  shall  be  left  to  military 
authority. 

The  flag  and  the  arm-badge  shall  bear  a  red  cross  on  a  white  ground. 

Art.  VIII.  The  details  of  execution  of  the  present  convention  shall  be 
regulated  by  the  commanders-in-chief  of  belligerent  armies,  according  to 
the  instructions  of  their  respective  governments,  and  in  conformity  with 
the  general  principles  laid  down  in  this  convention. 

ADDITIONAL   ARTICLES. 

Article  I.  The  persons  designated  in  Article  II  of  the  Convention 
shall,  after  the  occupation  by  the  enemy,  continue  to  fulfill  their  duties, 
according  to  their  wants,  to  the  sick  and  wounded  in  the  ambulance  or 
the  hospital  which  they  serve.  When  they  request  to  withdraw,  the  com- 
mander of  the  occupying  troops  shall  fix  the  time  of  departure,  which  he 
shall  only  be  allowed  to  delay  for  a  short  time  in  case  of  military  necessity. 

Art.  II.  Arrangements  will  have  to  be  made  by  the  belligerent  powers 
to  ensure  to  the  neutralized  person,  fallen  into  the  hands  of  the  army  of 
the  enemy,  the  entire  enjoyment  of  his  salary. 

Art.  III.  Under  the  conditions  provided  for  in  Articles  I  and  IV  of  the 
Convention,  the  name  "ambulance"  applies  to  field  hospitals  and  other 
temporary  establishments,  which  follow  the  troops  on  the  field  of  battle 
to  receive  the  sick  and  wounded. 

Art.  IV.  In  conformity  with  the  spirit  of  Article  V  of  the  Convention, 
and  to  the  reservations  contained  in  the  protocol  of  1S64,  it  is  explained 
that  for  the  appointment  of  the  charges  relative  to  the  quartering  of 
troops,  and  of  the  contributions  of  war,  account  only  shall  be  taken  in  an 
equitable  manner  of  the  charitable  zeal  displayed  by  the  inhabitants. 

Art.  V.  In  addition  to  Article  VI  of  the  Convention,  it  is  stipulated 
that  with  the  reservation  of  officers  whose  detention  might  be  important 
to  the  fate  of  arms  and  within  the  limits  fixed  by  the  second  paragraph  of 
that  article,  the  wounded  fallen  into  the  hands  of  the  enemy  shall  be  sent 
back  to  their  country,  after  they  are  cured,  or  sooner  if  possible,  on  con- 
dition, nevertheless,  of  not  again  bearing  arms  during  the  continuance  of 
the  war. 


II.  The  foregoing  Convention  and  additional  articles  are  published  by 
order  of  the  President,  who  commands  that  the  original  Convention  and 
the  first  five  of  the  additional  articles  shall  form  part  of  the  "  Instructions 
for  the  Government  of  Armies  of  the  United  States  in  the  Field,"  as  pub- 
lished iu  General  Orders  No.  100,  1863,  from  this  office. 

By  command  of  Major  General  Schofield 

J   C.  Keeton, 

Adjutant  General. 


APPENDIX    III.  489 


APPENDIX    III. 

The   Brussels  Project  of  an  International  Declaration    concerning    the 
Laws  and  Customs  of  War. 

ArTicxk  1.  A  territory  is  considered  as  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army. 

The  occupation  only  extends  to  those  territories  where  this  authority  is 
established  and  can  be  exercised. 

•  Art.  2.  The  authority  of  the  legal  power  being  suspended,  and  having 
actually  passed  into  the  hands  of  the  occupier,  he  shall  take  every  step  in 
his  power  to  re-establish  and  secure,  as  far  as  possible,  public  safety  and 
social  order. 

Art.  3.  With  this  object  he  will  maintain  the  laws  which  were  in  force 
in  the  country  in  time  of  peace,  and  will  only  modify,  suspeud,  or  replace 
them  by  others  if  necessity  obliges  him  to  do  so. 

Art.  4.  The  functionaries  and  officials  of  every  class  who  at  the  instance 
of  the  occupier  cousent  to  continue  to  perform  their  duties,  shall  be  under 
his  protection.  They  shall  not  be  dismissed  or  be  liable  to  summary  pun- 
ishment 'punts  disciplinairement)  unless  they  fail  in  fulfilling  the  obli- 
gations they  have  undertaken,  and  shall  be  hauded  over  to  justice  only 
if  they  violate  those  obligations  by  unfaithfulness. 

Art.  5.  The  army  of  occupation  shall  only  levy  such  taxes,  dues,  duties, 
and  tolls  as  are  already  established  for  the  benefit  of  the  State  or  their 
equivalent,  if  it  be  impossible  to  collect  them,  and  this  shall  be  done,  as 
far  as  possible,  in  the  form  of,  and  according  to,  existing  practice.  It  shall 
devote  them  to  defraying  the  expenses  of  the  administration  of  the  country 
to  the  same  extent  as  was  obligatory  on  the  legal  Government. 

ART.  6.  The  army  occupying  a  territory  shall  take  possession  only  of 
the  specie,  the  funds,  and  marketable  securities,  etc.  [valeurs  exigibles), 
which  are  the  property  of  the  State  iu  its  own  right,  the  depots  of  arms, 
means  of  transport,  magazines,  and  supplies,  and,  in  general,  all  the  per- 
sonal property  of  the  State  which  is  of  a  nature  to  aid  and  carry  on  the  war. 

Railway  plant,  laud  telegraphs,  steam  aud  other  vessels  not  included  in 
cases  regulated  by  maritime  law,  as  well  as  depots  of  arms,  and  generally 
every  kind  of  munitions  of  war,  although  belonging  to  companies  or  to 
private  individuals,  are  to  be  considered  equally  as  means  of  a  nature 
to  aid  in  carrying  on  a  war  which  can  not  be  left  by  the  army  of  occupa- 
tion at  the  disposal  of  the  enemy. 

Railway  plaut,  land  telegraphs,  as  well  as  the  steam  and  other  vessels 
above  mentioned,  shall  be  restored,  and  indemnities  be  regulated  on  the 
conclusion  of  peace. 

Art.  7.  The  occupying  State  shall  only  consider  itself  in  the  light  of 
an  administrator  and  usufructuary  of  the  public  buildings,  real  property, 
forests,  and  agricultural  works  belonging  to  the  hostile  State  and  situated 
iu  the  occupied  territory.  It  is  bound  to  protect  these  properties  (foudes 
de  ces proprietes),  and  to  administer  them  according  to  the  laws  of  usufruct. 


49©  APPENDIX    III. 

Art.  8.  The  property  of  parishes  [communes],  of  establishments  devoted 
to  religion,  charity,  education,  arts,  and  sciences,  although  belonging  to 
the  State,  shall  be  treated  as  private  property. 

Every  seizure,  destruction  of,  or  willful  damage  to,  such  establishments, 
historical  monuments,  or  works  of  art  or  of  science  should  be  prosecuted 
by  the  competent  authorities. 

Of  those  who  are  to  be  recognized  as  Belligerents— of  Combatants  and 
Non-combatants. 

Art.  9.  The  laws,  rights,  and  duties  of  war  are  applicable  not  only  to 
the  army,  but  likewise  to  militia  and  corps  of  volunteers  complying  with 
the  following  conditions  : 

1.  That  they  have  at  their  head  a  person  responsible  for  his  subordinates. 

2.  That  they  wear  some  settled  distinctive  badge  recognizable  at  a  dis- 
tance. 

3.  That  they  carry  arms  openly  ;  and 

4.  That  in  their  operations  they  conform  to  the  laws  and  customs  of 
war.  Iu  those  countries  where  the  militia  form  the  whole  or  part  of  the 
army  they  shall  be  included  under  the  denomination  of  "  army." 

Art.  10.  The  population  of  a  non-occupied  territory  who,  on  the 
approach  of  the  enemy,  of  their  own  accord  take  up  arms  to  resist  the 
invading  troops  without  having  had  time  to  organize  themselves  in  con- 
formity with  article  9,  shall  be  considered  as  belligerents  if  they  respect 
the  laws  and  customs  of  war. 

Art.  ir.  The  armed  forces  of  the  belligerents  may  be  composed  of 
combatants  and  non-combatants.  Iu  the  event  of  being  captured  by  the 
enemy  both  one  and  the  other  shall  enjoy  the  rights  of  prisoners  of  war. 


Of  Sieges  and  Bombardments. 


Art.  17.  In  the  like  case  all  necessary  steps  should  be  taken  to  spare, 
as  far  as  possible,  buildings  devoted  to  religion,  arts,  sciences,  and  charity, 
hospitals,  aud  places  where  sick  and  wounded  are  collected,  on  condition 
that  they  are  not  used  at  the  same  time  for  military  purposes.  It  is  the 
duty  of  the  besieged  to  indicate  these  buildings  by  special  visible  signs. 
to  be  notified  beforehand  by  the  besieged. 

Art.  18.  A  town  taken  by  storm  shall  uot  be  given  up  to  the  victorious 
troops  to  plunder. 


Of  the  Sick  and  Wounded. 
Art.  35.  The  duties  of  belligerents,  with  regard  to  the  sick  aud  wounded, 
are  regulated  by  the  Couveution  of  Geneva  of  the  22d  August,  1864,  subject 


APPENDIX    III.  491 

to  the  modifications  which  may  be  introduced  into  that  Convention.      (See 
G.  O.  No.  3,  A.  G.  O.,  1892,  Appendix  II.) 

Of  the  Military  Poiver  with  respect  to  Private  Individuals. 

Art.  36.  The  population  of  an  occupied  territory  can  not  be  compelled 
to  take  part  in  military  operations  against  their  own  country. 

Art.  37.  The  population  of  occupied  territories  can  not  be  compelled 
to  swear  allegiance  to  the  enemy's  power. 

Art.  38.  The  honor  and  rights  of  the  family,  the  life  and  property  of 
individuals,  as  well  as  their  religious  convictions,  and  the  exercise  of  their 
religion  should  be  respected. 

Private  property  can  not  be  confiscated. 

Art.  39.  Pillage  is  expressly  forbidden. 

Of  Contributions  and  Requisitions. 

ART.  40.  As  private  property  should  be  respected  the  enemy  will  de- 
mand from  parishes  {communes),  or  the  inhabitants,  only  such  payments 
and  services  as  are  connected  with  the  necessities  of  war  generally  ac- 
knowledged in  proportion  to  the  resources  of  the  country,  and  which  do 
not  imply,  with  regard  to  the  iuhabitauts,  the  obligation  of  taking  part 
in  the  operations  of  war  against  their  own  country. 

Art.  41.  The  enemy,  in  levying  contributions,  whether  as  equivalents 
for  taxes  (vide  Article  5),  or  for  payments  which  should  be  made  in  kind, 
or  as  fines,  will  proceed,  as  far  as  possible,  according  to  the  rules  of  the 
distribution  and  assessment  of  the  taxes  in  force  in  the  occupied  territory. 

The  civil  authorities  of  the  legal  government  will  afford  their  assistance, 
if  they  have  remained  in  office. 

Contributions  can  be  imposed  only  on  the  order  ami  011  the  responsibil- 
ity of  the  geueral-iu-chief,  or  of  the  superior  civil  authority  established 
by  the  enemy  in  the  occupied  territory. 

For  every  contribution  a  receipt  shall  be  given  to  the  person  furnish- 
ing it. 

Art.  42.  Requisitions  shall  be  made  only  by  the  authority  of  the  com- 
mandant of  the  locality  occupied. 

For  every  requisition  and  indemnity  shall  be  granted,  or  a  receipt  given. 


492  APPENDIX    IV. 


APPENDIX    IV. 


Extract  from  the  Laws  of  War  proposed  by  the  Institut  de  Droit  Inter- 
national, Oxford,  September,  1880. 


Of  Occupied  Territory. 
Definition. — A  territory  is  considered  to  be  occupied  where,  as  the  re- 
sult of  its  iuvasiou  by  an  enemy's  force,  the  State  to  which  it  belongs  has 
ceased  in  fact  to  exercise  its  ordinary  authority  within  it  and  the  invading 
State  is  alone  in  a  position  to  maintain  order.  The  extent  and  duration 
of  the  occupation  are  determined  by  the  limits  of  space  and  time  within 
which  this  state  of  things  exists. 

Rules  of  Conduct  zvith  Regard  to  Persons. 

Since  new  relations  arise  from  the  provisional  change  of  government  it 
is  the  duty  of  the  occupying  military  authority  to  inform  the  inhabitants 
of  the  occupied  territory  as  soon  as  possible  of  the  powers  which  it  exer- 
cises, as  well  as  of  the  local  extent  of  the  occupation.  The  occupier 
must  take  all  measures  in  his  power  to  establish  and  to  preserve  public 
order. 

With  this  object  the  occupier  must,  so  far  as  possible,  retain  the  laws 
which  were  in  force  in  the  country  in  the  time  of  peace,  modifying, 
suspending,  or  replacing  them  only  in  case  of  necessity.  The  civil 
functionaries  of  every  kind  who  consent  to  continue  the  exercise  of  their 
functions  are  under  the  protection  of  the  occupier.  They  may  be  dis- 
missed, and  they  may  resign  at  any  moment.  For  failing  to  fulfill  the 
obligations  freely  accepted  by  them,  they  can  only  be  subjected  to  dis- 
ciplinary punishment.  For  betraying  their  trust  they  may  be  punished 
in  such  manner  as  the  case  may  demand. 

In  emergencies  the  occupier  may  require  the  inhabitants  of  an  occupied 
district  to  give  their  assistance  in  carrying  on  the  local  administration. 

As  occupation  does  not  entail  a  change  of  nationality  on  the  part  of  the 
inhabitants,  the  population  of  an  occupied  country  can  not  be  compelled 
to  take  an  oath  of  fidelity  or  obedience  to  the  enemy's  power.  Persons 
•doing  acts  of  hostility  directed  against  the  occupier  are,  however,  punish- 
able. 

Inhabitants  of  an  occupied  territory  who  do  not  conform  to  the  orders 
of  the  occupier  can  be  compelled  to  do  so. 

The  occupier  can  not,  however,  compel  the  inhabitants  to  assist  him  in 
his  works  of  attack  of  defence,  nor  to  take  part  in  military  operations 
against  their  own  country. 

Moreover,  human  life,  female  honor,  religious  beliefs,  and  forms  of 
worship  must  be  respected.    Interference  with  family  life  is  to  be  avoided. 

*  *  *  #  #  *  * 


APPENDIX    V.  493 


APPENDIX    V. 

Stale  of  Siege  in  France. 
(  From  Code  Manuel  de  L'Autoite  Civile.) 

The  state  of  siege,  says  Mr.  Foucart,  gives  rise  to  a  form  of  legislation 
wholly  exceptional.  The  peculiar  circumstances  in  the  midst  of  which 
one  finds  himself,  necessitate  the  transfer  of  all  the  rights  of  the  civil  to 
the  military  authority,  upon  which  then  depends  the  safety  of  the  place, 
and,  perhaps,  even  that  of  the  State.  The  military  commander  is  clothed, 
for  the  maintenance  of  order  and  interior  police,  with  prerogatives  which 
belong  to  civil  and  judicial  magistrates,  and  he  exercises  them  exclusively 
on  his  personal  responsibility  ;  he  can,  therefore,  issue  legal  mandates, 
order  arrests  ;  he  can  also  force  dangerous  characters  to  leave  the  town. 
(Law  of  8th  July,  1791,  Arts.  9,  10,  11,  12;  decree  of  24th  Dec  1S11, 
Arts.  95-101-102  ;  see  post,  p.  496-'7). 

This  definition  of  the  state  of  siege  sums  up  the  opinion  of  all  text 
writers  ;  the  learned  professor  wrote  it  in  1839,  in  the  second  edition  of 
his  Elements  of  Public  Law,  a  work  worded  with  as  much  judiciousness 
as  talent,  and  to  which  we  have  often  had  recourse.  (See  Art.  53,  decree, 
24th  December,  1811,^05/,  p.  496.) 

By  the  law  of  iygr  (post,  p.  496),  the  state  of  siege,  like  the  stale  of  war, 
is  recognized  by  legislation  :  by  the  law  of  10th  Fructidor  of  the  year  V 
(post,  p  499),  the  state  of  siege  maybe  placed  upon  communes  of  the  inte- 
rior, and  no  one  will  be  persuaded  that  the  word  "  commune  "  [parishes] 
is  restricted  to  the  interior  of  towns. 

The  decree  of  181 1  (post,  p.  496-'7),  has  in  nowise  modified  these  laws,  but 
the  legality  of  the  state  of  siege  either  in  fortified  towns  or  in  communes 
of  the  interior  not  being  contested,  it  would  be  superfluous  here  to  dwell 
upon  that  part  of  the  legislation  included  in  our  text.  There  is  another 
question  which,  by  its  importance,  demands  our  attention,  to  wit :  whether 
article  103  (post,  p  497)  of  the  decree  of  24th  December,  181 1,  which,  for 
all  offences  committed  during  the  state  of  siege,  replaces  the  ordinary 
tribunals  by  military  tribunals,  has  been  abrogated  by  the  constitutional 
charter. 

This  question,  it  is  known,  was  the  subject,  in  1832,  of  a  decree  of  the 
court  of  appeal  to  which  was  given,  erroneously,  by  public  opinion,  an 
extension  of  meaning  that  it  is  far  from  having  ;  the  decree  of  the  19th 
June,  in  fact,  has  purely  and  simply  admitted  the  appeal  of  Mr.  Geoffroy 
from  a  finding  of  the  second  "  conseil  de  guerre  "  of  the  first  military 
division,  set  aside  the  proceedings  and  sentence  by  sending  the  aforesaid 
Geoffroy  on  a  warrant  of  commitment  before  the  examining  magistrate 
of  the  court  of  first  instance  [a  court  of  inferior  jurisdiction]  and  after- 
ward before  the  court  of  assizes,  etc.,  and  this,  because  Geoffroy  not  being 
a  soldier  or  having  any  military  character,  there  had  been  an  exceeding 


494  APPENDIX   V. 

of  jurisdiction  and  a  violation  of  articles  53  and  54  of  the  Charter,  etc., 
etc. ;  the  same  decree  recognizing,  nevertheless,  the  legality  of  the  legisla- 
tion regarding  the  state  of  siege. 

If  we  go  back  to  the  epoch  when  this  decision  was  rendered  to  the  par- 
ticular circumstances  which  called  it  forth,  it  is  impossible  not  to  recog- 
nize that  it  can  not  in  the  future  have  the  force  that  the  decisions  of  the 
Supreme  Court  would  ordinarily  give  it.  The  decree  of  the  19th  of  June 
can  evidently,  let  us  say,  be  considered  only  as  an  act  of  policy  for  the 
moment,  having  no  other  object  than  to  quiet  feeling  and  not  to  invali- 
date impliedly  one  or  more  portions  of  a  law,  all  the  principles,  all  the 
provisions  of  which  are  bound  together  so  closely  and  are  so  inseparable 
that  to  destroy  a  single  one  of  them  would  be  to  annul  all.  This  decree 
finally  bears  the  stamp  of  the  most  striking  anomaly.  How,  indeed,  is 
it  possible  to  recognize  the  legality  of  legislation  on  the  state  of  siege, 
that  of  the  jurisdiction  of  military  tribunals,  the  legality  of  the  suspension 
of  ordinary  jurisdiction,  and  to  desire,  on  the  other  hand,  that  the  latter 
exist  even  though  for  the  trial  of  a  class  of  individuals  ?  As  has  been  well 
said,  the  true  principle  of  the  state  of  siege  lies  above  all  in  the  necessity 
for  defence  ;  this  is  an  absolute  principle  that  all  states,  all  governments, 
despotic,  republican,  or  constitutional,  have  never  contested.  Suppose 
the  court  of  appeals  itself  closed  in  a  place  that  is  invested,  besieged, 
bombarded;  its  power  has  ceased,  its  jurisdiction  exists  no  more  than  does 
that  of  the  ordinary  courts  or  other  ordinary  tribunals.  The  court-mar- 
tial alone  has  jurisdiction;  it  acts  even  when  the  enemy  is  in  the  breach, 
and  when  he  even  enters  the  place.  In  such  cases  an  appeal  is  not 
thought  of;  there  is  no  appeal,  there  can  be  no  appeal  other  than  to  the 
clemency  of  the  conqueror.  This  is  the  spirit,  the  letter  of  the  law  regard- 
ing the  state  of  siege  ;  the  commander  of  the  place  is  the  sole,  the  only 
authority  who  gives  orders  and  the  only  one  to  whom  one  owes  obedience  ; 
there  can  not,  therefore,  be  side  by  side  with  his  jurisdiction,  or  that 
which  emanates  from  him,  any  other  jurisdiction.  Admit  for  one  instant 
this  other  jurisdiction  and  there  will  no  longer  be  commanders  who 
answer,  on  the  penalty  of  their  heads,  for  the  safety  of  all  in  the  place, 
often  for  the  safety  of  the  State. 

We  reason  here,  as  is  well  understood,  in  a  general  way  in  regard  to  the 
state  of  siege  and  in  the  strict  meaning  of  that  situation  ;  the  court  of  ap- 
peal has  on  the  contrary  seen  only  a  particular  case,  the  mitigating  cir- 
cumstances of  which  have  dictated  its  decree  which,  once  more,  can  not 
be  considered  as  a  decision  of  principle  without  the  greatest  danger  to 
the  defence  of  the  State. 

Articles  53  and  54  of  the  Constitution  are  urged  against  this  : 
"Art.  53.  No  one  will  be  deprived  of  his  natural  judges." 
"Art.  54.  In    consequence,  extraordinary  commissions  and  tribunals 
can  not  be  created  by  virtue  of  any  right  or  under  any  name  whatever." 

These  articles  had  as  an  object  to  prevent  the  revival  of  the  military 
commissions  of  the  empire,  of  the  prevotal  courts  of  the  restoration, 
finally,  of  any  extraordinary  improvised  jurisdiction.     But  the  permanent 


APPENDIX   V.  495 

military  courts  are  not  extraordinary  commissions  newly  and  specially 
created  for  certain  cases  ;  they  are  sanctioned  in  law  ;  the  court  of  appeal 
decided  a  hundred  times  before  the  decree  of  the  19th  of  June  that  the 
Constitution  had  not  abolished  them  ;  that  they  were  the  ordinary  tribu- 
nals of  the  military  as  naval  courts-martial  are  the  tribunals  of  the  naval 
service,  and  by  virtue  of  the  decree  of  November  12,  1806,  the  judges  of 
offences  committed  in  port  by  non-military  persons.  Finally,  during  the 
state  of  siege,  the  military  tribunals  become  the  ordinary  tribunals,  and 
since  the  decree  of  June  19,  1832,  itself  recognized  the  legality  of  the  state 
of  siege,  it  could  not,  without  self-contradiction,  fail  to  recognize  the 
jurisdiction  that  this  situation  brings  about. 

The  objection,  based  upon  the  fact  that  under  the  government  of  the 
Constitution  the  crime  of  sedition  committed  by  non-military  persons  is 
within  the  jurisdiction  of  the  court  of  assizes,  can  not  here  have  the 
slightest  consideration,  as  it  is  not  a  question,  we  repeat,  of  ordinary  times 
when  sedition  may  be  committed,  but  of  a  time  of  war,  of  the  state  of 
siege,  in  short,  which  is  war  in  the  very  height  of  its  action.  As  to  the 
objection  that  the  state  of  siege  resulting  from  a  sedition  in  an  interior 
commune  differs  from  the  state  of  siege  of  a  fortified  place  invested  and 
besieged  by  an -enemy,  the  very  legislation  regarding  the  state  of  siege 
destroys  it  completely,  since  the  definition  of  the  state  of  siege  comprises 
both  cases.  But  let  us  quote  here  Mr.  Voysiu  de  Gartempe,  who  filled  the 
office  of  attorney-general  of  the  court  of  appeal  on  the  19th  June,  1S32,  in 
the  appeal  of  Geoffroy  :  "  What !  the  necessity  for  the  state  of  siege,  recog- 
nized by  the  laws,  should  be  least  against  the  aggression  of  enemies  from 
the  inside  ?  What  difference  is  there  between  the  war  which  is  at  the  foot 
of  the  ramparts  and  that  which  breaks  out  within  the  very  walls  of  the 
city  ?  What !  Because  French  blood  has  been  shed  by  French  hands  the 
Government  will  not  be  able,  in  order  to  stop  its  being  shed,  to  use,  on  its 
own  responsibility,  all  the  means  which  belong  to  it?  Civil  war  is,  then, 
less  odious  than  foreign  war?  Does  it  no  longer  exact  means  of  repres- 
sion that  are  quite  as  prompt,  quite  as  powerful  ?  To  allow  the  facts  to 
speak  suffices  for  an  answer. 

"  When  lately  the  fires  of  sedition  were  smouldering  in  the  provinces 
of  the  west,  when  they  were  being  overrun  and  ravaged  by  armed  bands 
few  in  numbers,  what  did  the  deputies  of  these  provinces  ask  ?     What  did 

Note. — On  the  24th  of  June,  1848,  in  the  midst  of  the  terrible  insurrec- 
tion that  covered  Paris  with  blood,  Mr.  Pascal  Dupout  proposed  to  the 
Constituent  Assembly  to  place  Paris  in  a  state  of  siege.  The  state  of 
siege  was  voted  for.  It  lasted  until  October  19,  184S.  This  time  the  state 
of  siege  covered  with  its  sharlow  the  giving  to  courts-martial  of  the  juris- 
diction of  citizens  now  sanctioned  by  the  court  of  appeal.  This  was  fol- 
lowed the  13th  June,  1849,  by  a  law  placing  Paris  again  in  a  state  of  siege, 
proposed  and  passed  at  the  same  session  ;  and,  to  show  how  events  bring 
changes,  the  same  M.  Orilon  Barrot,  keeper  of  the  seal,  who  introduced 
this  law,  was  the  advocate  who  pleaded  so  eloquently  for  M.  GeofTroy, 
as  narrated  in  the  text  in  1832  (Dictionaire  de  la  Conversation,  article 
State  of  Siege). 


496  APPENDIX   V. 

the  general  councils  of  these  departments  say  ?  What  did  the  press  of 
the  opposition  repeat  with  great  outcry  ?  From  every  side  they  called  for 
the  placing  of  the  state  of  siege  or  accused  of  feebleness,  of  timidity,  the 
government  which  hesitated  to  employ  this  means,  the  only  one,  they 
said,  which  was  proportionate  to  the  evil,"  etc.,  etc. 


Extract  from   the   lazv  concerning   the  preservation  and  classifying  of 
fortified  towns  and  military  posts,  the  police  of  fortifications  and  other 
objects  relative  thereto,  given  at  Paris,  July  ioth,  ijgr. 
Decree  of  the  National  Assembly  of  Mry  24th,  June  25th,  27th,  and  30th, 
July  2d,  4th,  5th,  and  8th,  1971. 

******* 

Art.  10.  In  fortified  places  and  military  posts,  when  these  places  and 
posts  shall  be  in  a  state  of  siege,  all  authority  with  which  the  civil 
authorities  are  clothed  by  the  constitution  for  the  maintenance  of  order 
and  interior  police  shall  pass  to  the  military  commander,  who  shall  exer- 
cise it  exclusively  on  his  personal  responsibility. 

Art.  11.  Fortified  towns  and  military  posts  shall  be  in  the  state  of  siege 
not  only  from  the  instant  of  the  commencement  of  the  attack,  but  even 
as  soon  as,  by  the  effect  of  their  investment  by  hostile  troops,  the  commu- 
nications from  the  inside  to  the  outside,  or  the  outside  to  the  inside,  shall 
be  interrupted  at  a  distance  of  1800  toises  from  the  crest  of  the  covered 
way. 

Art.  12.  The  state  of  siege  will  cease  only  upon  the  raising  of  the  in- 
vestment ;  and  in  case  attacks  shall  have  been  begun,  only  after  the  works 
of  the  besiegers  shall  have  been  destroyed,  and  the  breaches  repaired  or 
placed  in  a  state  of  defence. 

Extract  from  the  decree  of  the  2 ^.th  Dec,  1S11,  relative  to  the  organiza- 
tion and  service  of  the  military  staff  of  fortresses. — Chapter  I,  General 
Provisions. 

Art  50.  Fortified  places  shall,  in  regard  to  their  service  and  police,  be 
considered  under  three  relations,  viz.:  in  the  state  of  peace,  in  the  state 
of  war,  and  in  the  state  of  siege,  in  accordance  with  Arts.  5-12  of  sub- 
head 1,  of  the  law  of  July  ioth,  1791,  and  subject  to  modifications  estab- 
lished in  the  following  :  *  *  *  *  * 

Art.  53.  The  state  of  siege  is  determined  by  a  decree  of  the  emperor, 
by  investment,  by  an  attack  in  force,  by  a  surprise,  by  an  insurrection,  or, 
finally,  by  mustering  troops  within  the  radius  of  investment  without  the 
authority  of  the  magistrates. 

In  the  case  of  a  regular  attack,  the  state  of  siege  ceases  only  after  the 
works  of  the  enemy  have  been  destroyed  and  the  breaches  put  in  a  state 
of  defence. 

In  these  different  cases  the  duties  and  obligations  of  commanders  of 
troops  are  subject  to  the  rules  laid  down  further  on,  Chapter  IV. 


APPENDIX   v.  497 

Chapter  IV. —  The  State  of  Siege. 

Art.  ior.  In  places  in  a  state  of  siege,  the  authority  with  which  the 
magistrates  were  clothed  for  the  maintenance  of  order  and  police  passes 
in  its  entirety  to  the  commander  of  troops,  who  exercises  it  or  delegates 
to  them  such  part  of  it  as  he  thinks  proper. 

Art.  102.  The  governor  or  commanding  officer  exercises  this  authority 
or  causes  it  to  be  exercised  under  his  supervision  and  in  his  name,  within 
the  limits  determined  by  the  decree,  and  if  the  place  is  invested,  within 
the  radius  of  investment. 

Art.  103.  For  all  crimes  which  the  governor  or  commandant  has  not 
judged  proper  to  leave  to  the  cognizance  of  the  ordinary  courts,  the  duties 
of  police  justice  are  performed  by  a  military  provost,  selected  as  far  as 
possible  from  among  the  officers  of  the  "  gendarmerie,"  and  the  ordinary 
tribunals  are  superseded  by  the  military  tribunals. 

Art.  104.  In  the  state  of  siege  the  governor  or  commandant  deter- 
mines upon  the  service  of  the  troops  of  the  national  guard  and  that  of 
all  the  civil  and  military  authorities,  following  no  other  rule  than  his 
secret  instructions,  the  movements  of  the  enemy,  and  the  works  of  the 
besieger. 

Constitutional  and  Organic  Laws  relating  to  Public  rowers. 
******  * 

Slate  of  Siege 

Can  be  declared  only  in  case  of  imminent  danger  and  by  the  Assembly 
only,  except  in  case  of  prorogation.  (Law  of  9th  August,  1849,  Arts.  1, 
2,  and  3.) 

In  the  Colonies  and  in  Algeria  the  declaration  of  the  state  of  siege  may 
be  made  by  the  governor. 

In  fortified  towns  it  may  be  made  by  the  military  commander.  (Law 
9th  August.  1849,  Arts.  4  and  5  ;  decree  29th  April,  1S57,  Art.  10.) 

The  state  of  siege  has  as  a  result  the  transfer  to  the  military  authorities 
of  the  powers  with  which  the  civil  authorities  are  clothed  for  the  main- 
tenance of  order  and  police.     (Law  9th  August,  1849,  Art.  7.) 

Only  the  Assembly  has  the  right  to  raise  the  state  of  siege  when  it  has 
been  declared  or  maintained  by  it. 

Nevertheless,  in  case  of  prorogation,  this  right  belongs  to  the  President 
of  the  Republic.     (Law  9th  August,  1849,  Art.  12.) 

Law  regarding  the  State  of  Siege  of  gth  August,  /Sjg. 
Chapter  I.— Cases  in  which  the  State  of  Siege  may  be  Declared. 
Article  i.    The  state  of  siege  can  be  declared  only  in  case  of  im- 
minent peril  for  the  purpose  of  interior  or  exterior  safety. 


498  APPENDIX   V. 

Chapter  II.— Forms  of  the  Declaration  of  the  State  of  Siege. 


Article  2.  The  National  Assembly  has  the  sole  power  to  declare  the 
state  of  siege  with  exceptions  mentioned  below. 

The  declaration  of  the  state  of  siege  designates  the  communes,  the 
districts,  and  the  departments  to  which  it  is  applied  and  may  be  extended. 

Art  3.  In  the  case  of  prorogation  of  the  National  Assembly  the  Presi- 
dent of  the  Republic  may  declare  the  state  of  siege  by  the  advice  of  the 
Council  of  Ministers. 

The  President,  when  he  has  declared  the  state  of  siege,  must  immedi- 
ately notify  the  commission  instituted  by  virtue  of  Article  32  of  the 
Constitution  of  the  fact,  and,  according  to  the  gravity  of  the  circum- 
stances, call  the  National  Assembly  together. 

The  prorogation  of  the  Assembly  ceases  as  of  right  when  Paris  is  de- 
clared in  a  state  of  siege. 

The  National  Assembly,  as  soon  as  it  has  assembled,  continues  or  raises 
the  state  of  siege. 

Art.  4.  In  French  colonies  the  declaration  of  the  state  of  siege  is  made 
by  the  governor  of  the  colony.  He  must  immediately  account  for  it  to 
the  Government. 

Art.  5.  In  fortified  towns  and  military  posts,  either  on  the  frontier  or  in 
the  interior,  the  declaration  of  the  state  of  siege  may  be  made  by  the  mili- 
tary commander  in  the  cases  provided  by  the  law  of  10th  July,  1791,  and 
by  the  decree  of  24th  December,  181 1. 

The  commandant  immediately  gives  an  account  of  it  to  the  Government. 

Art.  6.  In  the  cases  provided  for  in  the  two  preceding  articles,  if  the 
President  does  not  believe  that  the  state  of  siege  should  be  raised,  he  will 
without  delay  propose  the  continuance  of  it  to  the  National  Assembly. 

Chapter  III.— Effects  of  the  State  of  Siege. 

Art.  7.  Immediately  on  the  declaration  of  the  state  of  siege  the  powers 
with  which  the  civil  authority  was  clothed  for  the  maintenance  of  order 
and  police  passes  in  its  entirety  to  the  military  authority. 

The  civil  authority  continues,  nevertheless,  to  exercise  those  powers  of 
which  the  military  authority  has  not  deprived  it. 

Art.  8.  The  military  tribunals  may  be  vested  with  the  jurisdiction  of 
crimes  and  misdemeanors  against  the  safety  of  the  State,  against  the 
Constitution,  against  public  order  and  peace,  whatever  the  status  of  the 
principals  or  accomplices. 

A.RT.  9.  The  military  authority  has  the  right  : 

1.  To  search  by  day  or  night  the  homes  of  citizens. 

2.  To  send  away  individuals  who  have  undergone  judicial  punishment, 
and  individuals  who  have  not  their  domicile  in  the  places  subject  to  the 
state  of  siege. 


appendix  v.  499 

3.  To  order  the  surrender  of  anus  and  stores,  and  to  proceed  to  search 
and  seize  them. 

4.  To  prohibit  publications  and  meetings  that  it  judges  to  be  of  a  nature 
tending  to  incite  and  maintain  disorder. 

Art.  10.  In  the  places  named  in  articles  the  effects  of  the  state  of  siege 
continue,  in  allitiou,  in  cases  of  foreign  war,  to  be  determined  by  the 
provisions  of  the  law  of  Jul)'  10,  1791,  and  the  decree  of  December  24,  1811. 

Art.  [i.  Citizens  continue,  notwithstanding  the  existence  of  the  state 
of  siege,  to  exercise  all  those  rights  guaranteed  by  the  Constitution,  and 
the  enjoyment  of  which  is  not  suspended  by  virtue  of  the  preceding  articles. 

Chapter  IV.— Raising  ok  thr  State  of  Siege. 

Art.  [2.  The  National  Assembly  his  the  sole  right  to  raise  the  state  of 
siege  when  it  has  been  declared  or  continued  by  it. 

Nevertheless,  in  case  of  prorogation,  this  right  will  appertain  to  the 
President  of  the  Republic.  The  state  of  siege  declared  in  conformity 
with  Articles  3,  4,  and  5,  may  be  raised  by  the  President  of  the  Republic, 
provided  it  has  uot  been  continued  by  the  National  Assembly. 

Tiie  state  of  siege  declared  in  conformity  with  Article  4  ma)'  be  raised 
by  the  governors  of  the  colonies  as  soon  as  they  believe  quiet  to  be  suffi- 
ciently restored. 

Art.  13.  After  the  raising  of  the  state  of  siege  the  military  tribunals 
continue  to  take  cognizance  of  crimes  and  misdemeanors,  the  prosecution 
of  which  has  been  turned  over  to  them. 

(Foot-note  to  Article  4  "  Article  10  of  the  decree  of  April  29th,  1S57,  is 
thus  worded  :  In  Algeria  the  state  of  siege  results  from  the  cases  enu- 
merated in  Article  39  of  the  decree  of  Aug.  10th,  1853,  or  from  the 
promulgation  of  a  decree  issued  by  reason  of  emergency  by  the  Governor- 
General  ".) 

From  "Repertoire  Uuiverselle  et  Raisonuee  de  Jurisprudence." 

The  constitution  of  the  5th  Fructidor,  year  3,  not  having  expressly  de- 
termined the  cases  or  the  forms  in  which  the  towns  of  the  interior  could 
be  declared  in  a  *  *  *  state  of  siege,  the  law  of  the  10th  Fructidor, 
year  5,  provided  for  it  in  the  two  following  articles  : 

******* 

Art.  2.  The  communes  of  the  interior  will  be  in  a  state  of  siege  as  soon 
as  by  the  effect  of  their  investment  by  hostile  troops  or  by  rebels  the 
communications  from  within  to  without,  or  from  without  to  within,  shall 
be  interrupted  at  a  distance  of  three  thousand  five  hundred  and  two 
metres  (eighteen  hundred  toises)  ;  in  this  case  the  executive  directory  will 
warn  the  legislative  body  of  the  fact." 


500  APPENDIX    V. 

But  the  fact  was  soon  recognized  that  this  lav/  was  contrary  to  the  spirit 
of  the  constitution  of  the  year  3  ;  and  by  Article  39  of  the  law  of  the  19th 
of  the  same  month,  "the  power  to  put  a  commune  in  a  state  of  siege 
was  given  to  the  directory." 

The  constitution  of  the  22d  Frimaire,  year  8,  is  no  more  explicit  than 
that  of  the  year  3,  about  the  power  to  declare  places  in  a  state  of  siege  or  of 
war.  But  that  this  power  did  belong  to  the  head  of  the  government  with- 
out the  concurrence  of  any  other  authority,  that  the  head  of  the  govern- 
ment was  alone  able,  as  the  king  still  is  to  day,  to  declare  war  against 
foreign  powers,  is  not  to  be  doubted. 

Furthermore,  we  see  that  the  fortified  towns  of  Antwerp  and  Brest 
were  declared  in  a  state  of  siege  by  two  decrees  of  the  26th  March,  1807. 


5or 


IN  DEX. 


A.  PACK. 

Actions — Ex-contrac tu ,  ex  del icto 24S 

Transitory,  under  military  government 127 

Acts— Dominant  military,  reviewed  by  local  courts 245 

Innocent  in  ordinary,  criminal  in  martial-law  times  406 

Riot,  effect  of. 358 

To  protect  officers,  May  11,  1S66 381 

Opponent,  attempt  arraign  as  unwarranted ;...  247 

Rendering  military  officers  responsible 246 

Of  Congress,  settlement  claims 261-2 

Adams,  John — Remarks  on   militan^  power '! 335 

Administration  of  martial  law 408 

Adolphus — Historian,  reference  to  riots  321 

Agents— Dual  set   in  some  rebel  States 72 

Evils  resulting '     72 

Allegiance — Temporary,  theory  adopted 1 

A  duty  for  protection  received  37,  38,  40,  41 

Views  of  Mr.  Hall  regarding— note 41 

Allies — Not  permitted  trade  with  enemy 206-7 

Alsace — Eorraiue,  conquest  of 2S8 

Ambrister— Execution  of 276 

Amenability — Rule  of,  extension  of  common-law  rule 334 

Amendments  4th,  5th,  6th  to  Constitution — effect  of 14 

Andre — Case  of  Major 275 

Archives — Public,  not  to  be  destroyed 196-7 

Armistice— principles  controlling,  Appendix  II. 484 

Army — As  part  posse  com itatus  (note) 324 

In  enemy  country,  governed  by  our  laws  alone 241 

Invading,  laws  governing 91 

Invading,  not  subject  local  laws 91 

No  early  standing  in  England 292 

Regular,  employe  1  against  rebels 365 

Regular,  not  dangerous  to  liberty 324 

Regulations  enjoin  obedience  to  orders 448 

Supply  system  in  Mexico 68 

Armies  of  U.  S — Instructions  for,  in  field 5 

Arbuthnot — Execution  of 276 

Arizona — Martial  law  in 372.  402 

Territory  of,  under  military  government 6t 


502  INDKX. 

Articles  of  War — Applicable  to  army  everywhere iio-ii 

Applicable  to  civilians 1 18 

Construction  of,  as  to  civilians 437~8 

Regarding  spoils  of  war 145 

Assassination — Violate  laws  of  war,  Appendix  II 4S5 

Atlanta,  Ga. — Destruction  property  in 200 

Martial  law  in 299 

Removal  people  from — note Si 

Attoi ney  General — Opinion  on  reconstruction  acts 387 

Definition  of  marti  d  law 331-2 

Authorities— Civil,  must  be  called  011  before  military 274 

Authority  —  Commanders  under  martial  law,  views  Mr.  Webster  on  412 

Conflict  of,  military  and  judiciary 337    8 

Expressed  and  implied 24-6 

Implied,  executive  officers  445 

Liability  for  malicious  abuse  of. 433 

Rule  regarding  exercise  of,  discretionary 433 

B. 

Bacon,  Lord— Remarks  on  trial  of  Essex 293 

Baltimore — Condition  affairs  in  1S61 360 

Martial  law  in 339.  377 

Beard  v.  Burts — Case  of 464 

Belligerents  may  be  rebels 79 

Bill  of  Rights— Constitutional 411 

Effect  of  war  upon 411 

Bills— Indemnity 459~65 

Blackstone — Remarks  on  martial  law 304 

Bluutschli — Views  on  contributions 154 

Necessity,  regular  army  commissions 83 

Bonaparte — Rule  of,  as  to  works  of  art 190 

British — Colonial  martial-law  experience 310 

Destruction  Capitol  United  States,  1S14 J93~4 

Rule  of  conquest 56 

Brussels — Conference  of 5 

Project,  laws  of  war,  Appendix  III 489-91 

Buchanan,  Secretary  of  State,  views  of 2S5 

Buffalo,  New  York — Riots  at 404 

Business  affairs — Private,  under  revolutionary  governments 178-84 

Bynkershoek — Views  on  confiscation  12S 

c. 

California — .Subjugation  of. 30 

When  military  government  ceased  in 2S6-7 

Camp  followers— Status  of,  Appendix  II 476 


INDEX.  503 

Campaign — Plau  Mexican 249 

Campbell,  Lord — Remarkson  levying  war 320 

Remarks  on  condemnation  Gov.  Wall 441 

Canby — General,  in  New  Mexico  371 

Capital — U.  S-,  capture  and  sacking  of. J93-95 

Capitulation — What  permissible  after,  Appendix  II 485 

Carlton,  Colonel — Proclamation  of. 402 

Caroline — Affair  of  the 353 

Castine,  Maine — British  possession  of         29 

Causes — Civil,  jurisdiction  of,  by  military  courts 103-10 

Ceylon — Investigation  martial  law  in 304 

Rebellion  in — Remarks  of  Duke  of  Wellington  on 31 

Cheerful  obedience  of  orders — Necessity  for 44S 

Charles  the  First — Arbitrary  acts  of 293 

Chief  Justice — Opinion  of,  Merrymau  case 361 

Chinese — Riots  against 401 

Civil  Administration  responsible  for  repressive  measures 447 

Community  nothing  to  fear  from  military 464 

Suits  against  Federal  officers  ;  removal  of,  to  Federal  forum,  445 

War,  rule  responsibility  military  officers  in 271-2 

Civilians — Connected  with  arm}' 120 

Position  of,  under  military  government 11S,  121 

Claims — Court  of  organized 263 

Clode — Remarks  of,  on  martial-law  court  rules 431 

Remarks  on  martial  law 326 

Code — Brussels,  contentions  regarding 7 

Of  war,  supplemental,  published  in  Mexico 466-7-8 

Coaur  d'Alene  Mines — Martial  law  in 397~9 

Coleman — Case  of. 1 16-7 

Colonial  Judge — Views  on  martial  law 310 

Martial  law  experiences 310 

Columbia — District  of,  status  as  to  martial  law 3S3-4 

Combatants — Who  are,  Appendix  III 490 

Commander — Alone  authorize  contributions 245 

Acts  of,  those  of  President 106 

Authority  of,  modified  by  State  policy 64-5 

Defines  duties  subordinates 408 

Determines   form  of  military  government  set  up 240-1 

Duties  regarding  movable  private  property....    165 

Duties  of,  as  to  rules  non-intercourse 208 

Entitled  great  consideration 263 

Has  control  immovable  property 140 

Much  martial-law  discretion  in  case  of  war 447 

Not  delegate  martial-law  authority 412 

Not  evade  responsibility 436 

Responsibility  of  enforcing  martial  law  433-48 


5°4  INDEX. 

Commander — continued. 

Responsibility  of,  under  military  government 240 

Tjkes  private  property  necessary  for  army r39-4<> 

Utilizes  martial  law  for  defence 352 

In-Chief,  dictatorial  powers  conferred  upon 347 

Commercial  intercourse— When  becomes  illegal 228-9 

Commissions — Military,  origin  of,  in  U.  S 275 

Military,  jurisdiction  of,  as  to  persons 2S2 

Military,  by  what  authority  appointed 280 

Regular,  of  officers,  necessity  for 82 

Royal,   1865 427 

Common  law — A  law  of  peace 34I-3 

Basis  of 343 

Character  of 341-2 

Justifies  what  is  necessary 13 

Not  suited  time  insurrection 323 

Community— Law  abiding, difficulty  uniting  359 

Compensation— For  private  enemy  property,  not  obligatory 165 

Conduct — Regard  persons,  occupied  territory,  Appendix  IV 492 

Confederacy,  Southern — Acts  construed  by  U.  S.  Sup.  Court 179-84 

Governors  of,  declare  martial  law 399 

Martial  law  in 297-9,  339-40 

Confederate  President — Unwarranted  conduct  of 247-8 

Rule  of  military  occupation 61 

Secretary  of  war,  views  on  martial  law 297-9 

Confiscation — Act  Congress  necessary  legalize I3°-33 

Acts  of  Congress J33-35 

Acts,  effectsof. 134-S 

Decree  civil  courts  necessary 135 

Enemy  private  property 128 

Military  commander  can  not  legalize 138 

Congress— Acts  of,  restricting  trade  with  enemy 218 

Confederate,  acts  declared  nullities 179-80 

Disagreement  with  President 74 

Has  authority  license  trade 209-10- 

Makes  rules  concerning  captures 1^9 

Power  declare  martial  law  discussed 13-27 

Power  legislate  upon  confiscation 131 

To  provide  for  common  defence 26 

Congressional  martial  law 385-93 

Coppell  v.  Hall— Case  of  illicit  trade 214 

Conqueror— Effect  expulsion  of 2S4 

Conquest — Effect  of  permanent 284 

Consequences— Rule  of  responsibility,  Mitchell  v.  Harmony 255-61 

Constitutional  amendments— Nature  of,  first  adopted 411 

Contracts — Terminate  with  military  rule 140-41 

Exceptions 141-44 


INDEX.  505 

Contributions — Authorized  by  commander  alone 245 

Rules  governing,  Appendix  III 491 

When  exacted 152-3 

Conventions — International 5 

Cooley,  Judge — Remarks  on  martial-law  offences 418 

Courts— Border  State,  rulings  of 273-4 

Circuit,  U.  S.,  removal  suits  to,  against  Federal  officers 445 

Civil,  not  necessarily  closed  during  martial  law 352 

Civil,  weight  attached  to  executive  practices  by 426 

Decisions  upon  war  legislation 381-2 

Jurisdiction  of,  rule  of  responsibility 457 

Instruct  jury  as  to  law  regarding  motive  of  officers 435 

Instruct  jury  upon  law  of  martial-law  necessity 433 

In  subjugated  rebel   territory 9S-110 

Incline  view  acts  subordinates  leniently 450 

Jurisdiction  of  war 95-110 

Open — martial  law  still  legal , 309 

Provisional,  established  by  President 107 

Provost,  cognizance  civil  causes 106-10 

Sit  under  martial  law 360 

System  of  occupied  territory 95 

U.  S.,  no  common-law  criminal  jurisdiction 112 

Under  military  government,  commander's  authority  full....  99 

War  at  New  Orleans 104 

War,  civil  jurisdiction  of 105-10 

When  open  for  performance  of  duties 363-4 

Court  of  Claims 263 

Crimean  war — Rules  of,  as  to  trade  with  enemy  207 

Rule  of,  regarding  private  enemy  property 163 

Crimes — Against  persons  hostile  country 474~5 

By  common  law  of  local  cognizance  120 

Difficulty  of  detecting  times  social  disorder 406-7 

Curtis,  R.  B. — Remarks  on  martial  law  294-6 

Customs — War,  supplement  statutes. 279 

Of  war,  changes  wrought  in 420 

I>. 

Damages — Rule  as  to  recovery  of 407 

Debts — Due  from  State  to  enemy  subjects,  not  confiscable 163-5 

Duedeposed  State,  appropriated 186 

Private,  between  parties,  rule  of  appropriation 169 

Private,  due  enemy  subjects,  not  generally  confiscated 161 

Exceptions 162 

Debtors — Public,  effect  of  residence 187 

Deserters— Recaptured,  Appendix  II 475 

Destruction  property— Prevent  falling  hands  enemy 273 


506  indkx. 

Dicey — Views  on  exercise  martial-law  powers  443 

Obedience  subordinates 455 

Difficulties — Commanders' position 263 

Discretionary  authority — Rule  as  to  exercise  of- 433_5 

District  of  Columbia— Martial-law  status  in 383-4 

Disturbances — Civil,  as  basis  of  martial  law  349 

In  U.  S.,  yeari892 403-6 

Doniphan,  Colonel 249,  '50, '51-61 

Dundas,  Sir  David — Opinion,  martial  law 312 

Dunmore,  Lord — Proclamation  martial  law 345 

E. 

Effect — Conqueror's  acts  after  withdrawal 144 

Military  not  interfering  in  disturbance 446 

Enemy — Absent,  legal  rights  of,   before  courts !7°-3 

Armed,  not  of  hostile  army 83 

Disposition  of,  distort  facts 247 

Trade  with,  under  authority  Congress 210-2} 

Agent  in  opposite  country 231 

Enemies — Belligerent  rebel,  rights  regular  enemy 53-6 

Not  all  treated  alike 75 

England — Discussion  in,  over  Jamaica  case 312 

Evidence — Rules  of,  mirtial-law  tribunals 429 

Executive— Conflict  of,  with  Congress 3S5 

Incidental  powers  of 297 

Practices,  weight  given  by  courts  to. 426 

F. 

Federal  authority— Exercised  within  the  States 393 

Limit  of,  in  State 395~6 

Protect  State  against  rebellion 393 

Field,  David  Dudley — Remarks  on  martial  law 332 

Flags  of — Protection,  rules  regarding,  Appendix  II 482 

Truce,  rules  governing,  Appendix  II 4S2 

Truce,  sanctity  of,  Appendix  II 480 

Florida— Invasion  of 275 

Force — Only  necessary,  lawful  under  martial  law  409-10 

Right  and  duty  of  government  to  exercise 16 

Required,  State  determines  what 334 

For.l  v.  Suchet— Case  of. 272-3 

France — State  of  siege  in,  Appendix  V 302,  493 

Franc-tireurs—  Conduct  Germans  towards 83 

Frederick  II. — Military  practices  under 2 

Fremont,  General — Declaration  martial  law  in  Missouri 373 


5°7 


G. 

Gage,  Governor — Proclamation  martial  law 34^ 

Gauibier,  Captain — Case  of 260 

General  of  the  Array — Power  under  reconstruction  acts. 3S8-9 

Geneva— Conventions  at 5 

Convention,  terms  of,   Appendix  II 4S6-S 

Georgia — Action  of  Governor  as  to  martial  law 400 

Gibbon,  General 401 

Gladstone — Examination  J.  A.  General 310 

Gordon,  Dord  George — Riots 316 

Government,  military — Commercial  effects  of 5i~53 

Distinguished  from  martial  law 1 

Implies  actual  control 48 

Insurrection  against 233-40 

Regulates  entrance  into  districts 229 

Territorial  extent  of 42 

When  becomes  operative 44 

When  ceases 284-90 

Government — De  facto 39,4° 

Dejarto,  effects  of  acts 178-84 

Duty  of  subjects  to  defend 38 

National,  object  of,  in  suppressing  rebellion 32 

Revolutionary,  effects  of  its  acts [78-83 

U.  S.,  embraces  two  sovereignties 365 

Governments — Efforts  secure  loyal,  in  rebel  States 73 

Republican,  guaranteed  to  States 393 

Governor  of  State — Declaration  martial  law  by  396 

Grant,  General — Course  at  Memphis 101 

In  Vicksburg  campaign 256 

Griffiths — Views  on  martial  law 31S 

Guerrillas  and  irregular  troops 247 

Not  legally  i n  arms 82 

Practices  can  not  be  legalized 84 

IT. 

Habeas  Corpus— And  martial  law  power 378~9 

Act  suspending  writ  of 379-N0 

Suspension  writ  of 410 

Hale — Remarks  on  martial  law 292 

Hall,  \V.  E.— Views  on  theory,  temporary  allegiance  (note) 41 

Rules  of  post  lim  :>iiitm  (note) 168 

Hall,  Judge — Arrest  of  (note) 337 

Hallam — Remarks  on  martial  law 323_4 

Halleck — Classifies  exceptions  non-intercourse 230 

Declares  martial  law  in  Missouri 373~4 


508  INDEX. 

Halleck — continued. 

Rules  of,  regarding  seizure  enemy  private  property 149 

Views  of,  on  cessation  military  government 2S7 

Hamilton  v.  Dillen— Case  of  licensing  power. 221-2 

Hampton,  General — Case  against,  illegal  imprisonment 439-42 

Hardships — Wrought  by  rule  Mitchell  v.  Harmony 258-61 

Hare — Views  on  martial-law  necessity 352 

Views  of,  regarding  martial-law  powers,  Congress 14 

Hesse  Cassel — Case  of  Electorate 188 

Homestead — Riots  at 404 

Hostages — Principles  relating  to,  Appendix   II 476 

Right  to  take 149 

I. 

Idaho— Exercise  of  martial  law  in..' 397~9 

Illegal  orders  not  strictly  obligatory 449 

Immovable  private  property — Effect  post  liminium 175-6 

Not  transferred  by  conquest 178 

Purchaser  takes  at  his  risk 175 

Immunity — Same  under  written  and  unwritten  law 436 

Implied  authority— Executive  officers  445 

Implied  military  powers — Limit  of 295-6 

Incorporeal  rights — Rule  of  appropriation 169 

Adhering  to  person  170 

Attaching  to  immovable  enemy  property 174 

Indemnity,  bills  of — Necessity  for 460-1 

Not  cover  acts  of  cruelty 16 

Principles  governing 459-65 

Indemnity  bill — Jamaica 459-60 

Indemnity  acts — After  civil  war  U.  vS 461-2 

Indemnity  bills — Not  usual  in  U.  S 459 

Indemnity — -What  cover 314 

Only  covers  reasonably  excessive  acts 460-1 

Indemnification — For  contributions  154-5 

Inhabitants — Occupied  territory  enemies 75-85 

Injured  party  — Entitled  to  but  one  satisfaction 450 

Institut  de  Droit — International,  code  proposed  by 7 

Instructions — For  U.  S.  armies  in  the  field 5 

Insurrection — Definition  of,  Appendix  II 485 

Against  military  government 233-40 

Military,  question  of  expediency 233 

Invasion — Friendly  territory,  when  justified 370-1 

Friendly  territory,  necessity  for 353 

Justifies  martial  law 352 

Threatened,  as  justifying  martial  law 352 

Irel and — Rebellion  in 308 


INDEX.  509 


J. 


Jackson,  General — Invasion  Florida 276 

Enforces  martial  law  at  New  Orleans 355_8 

James,  Edward — Opinion  on  martial  law 312 

Johnson,  Andrew — Military  Gov.  of  Tenn 71 

Johnsoi,  Gen.  A  S.—  Seizure  private  property 261 

Johnson  v.  Duncan — Case  of 414 

Judicial  decisions — Change  in,  as  to  rule  responsibility 451-2 

Decisions  upon  war  legislation 382 

Opinion,  change  of,  regarding  martial  law 414 

Opinion,  recent,  on  martial  law 414-16 

Judiciary — Function  of,  remarked  upon 349-5° 

Louisiana,  inconsistent  action  of 417 

Judgments — After  the  fact,  justness  of 446 

Jurisdiction — Determined  by  facts  appearing  at  time 457 

Existing,  members  court  liable  only  case  of  malice 457 

Had,  rule  civil  liability 2S1 

Martial  law-tribunals 421 

Military,  kinds  of,  Appendix  II  470 

Military,  two  branches  of,  treated 1 

Question  of,  decided  by  martial-law  tribunal 456 

Rule  if  officers  transcend 442 

Territorial  limits  of  martial-law  tribunals  422-5 

Juries — Facts  influencing 354 

Jury — Determine  if  justifying  facts  exist 413 

Determine  necessity  martial  law 433 

Policy  of,  judging  military  actions .  328 

Justification — Rule  of,  seizure  property  of  subject 255 

K. 

Kansas— Martial  law  in 377 

Kearny,  General — Instructions  to 66-7 

Plan  of  campaign  as  to 249 

Kent,  Chancellor — As  to  trade  with  enemy 204 

Remarks  on  ransom  bills 230 

Views,  appropriating  enemy  property 146 

Kentucky — Martial  law  in. 362-3 

King  William — Proclamation  in  France 76 

Knights — Numbers  and  duties  of. 292 

L. 

Daw,  Common — Basis  of 343 

Duty  citizens  under 342-3 

Insular  features  of 358 

Justifies  what  is  necessary 13 


51 0  INDEX. 

Law  common, — continued. 

Provisions  against  riots 342 

Law-making  power  may  prescribe  rules  for  military  gov't,  63 

Law,  martial — Distinguished  from  military  government 1 

Nature  of,  Appendix  II 469-70 

Officers  not  confined  to  letter  of. 419-20 

Laws  applicable  subjects  conquering  State 1 10-21 

Laws,  Federal — Enforced  independently  State  authorities 367 

Authorizing  use  military  force  366 

Laws  of  United  States — Not  necessarily  written  444~5 

Written  and  unwritten 419 

Laws — Invaded  country,  not  applicable,  conquering  army 113 

Municipal,  under  revolutionary  governments 181 

Obligatory,  occupied  territory 91,  128 

Of  war,  determines  power  military  commander 240 

Of  war,  softened  by  modern  practice 146 

Of  war,  Supreme  Court  decisions  upon 8 

Legal  orders— Obligatory  whether  obviously  so  or  not 454 

Legislatures — National,  tyrannical  acts  of. 4ri 

Levies  en  masse — Conditions  to  legalize 90 

Distinguished  from  guerrillas 85 

vState  may  depend  on 89 

Use  of 85-90 

Weakness  as  military  force  88-9 

Liability — Officers  enforcing  martial  law 15 

Members  military  commissions 279 

Lieber,  Doctor  Francis 5 

Martial  law  notes 300,  301 

Long  Point,  U.  C. — Destruction  at,  by  American  army 193 

Lorraine — Punishment  people  of. 81-2 

Louaillier — Arrest  of  (note) 337 

Loughborough,  Lord— Remarks  on  military  tribunals 427 

Louisiana— Confederate  governor  asks  for  martial  law 400 

Condition  of  people  iu,  1S14-15 357 

Luther  v.  Borden— Case  of 334 

M. 

Mackintosh,  Sir  James — On  destruction  Capitol  at  Washington...  193 

Magna  Charta — Adoption  of 344 

Magistrates — Prosecution  of 322 

Malice  only  renders  liable — Court  proceeding  within  jurisdiction,  457-8 

Manning — Views  on  confiscation 129 

Mansfield,  Lord — Opinion  on  military  responsibility 265-6 

Manual — Military  law 318 

Views  martial  law  expressed  in 318-19 

Marcy,  Hon.  W.  L.— Secretary  of  War 252 


INDEX.  511 

Martial  law — A  means  to  an  end 19 

Administration  of. 408 

An  appropriate  war  measure 20 

Arizona 402 

As  belligerent  right 303 

Attorney  General's  remarks  on 331-2 

Based  on  necessity 9 

Brings  new  offences 409 

Causes  of,  in  Missouri 374 

Circumstances  justifying 12 

Congressional 385-93 

Courts,  trials  before  315 

Declared  by  President,  within  State 396 

Defined 291 

Differs  from  ordinary 301 

Distinguished  from  military  government 1 

Distinguished  from  military 291 

Domestic  fact 291 

Effect  declaration  of 406 

Evolution  term 292 

In  early  times  10 

In  England,  question  of  rebellion 307 

In  Idaho 397 

In  Southern  Confederacy 339 

In  United  States  307 

Justified  by  invasion 3  6-40 

Lex  non  scrip/a 330 

Military  rule,  under  civil  responsibility 338 

Municipal  authorities  under 39 1-2 

Nature  of,  Appendix   II 469-70 

Necessity  of,  by  whom  judged 303 

Necessity  for,  difficulty  to  anticipate 349 

Necessity  for,  during  i n  vasion 352 

Not  necessarily  supersede  municipal 10 

Not  urged  by  military  first  instance 464 

Opinion  Mr.  Stephen  on 3I2-T5 

Opinion  Supreme  Court  U.  S 333 

Order,  Gen.  Scott's,  in  Mexico , 466-S 

Powers  not  irresponsible 333~4 

Power  not  to  be  abused 314 

Power,  sovereign,  invoke 308-9 

Remarks  of  Pratt 326-7 

Remarks  of  Clode 326 

Remarks  on  Pratt's  view  of. 337-8 

Safeguards  against  abuse  of. 306 

Secret  plottings  necessitate 351 


512  INDEX. 

Martial  law — continued. 

Speculative  views  regarding... 310 

Source,  term 291 

Supplements  the  common 311-7 

Theory  of,  in  U.  S 331-340 

Theories  of,  differ 307 

To  suppress  rebellion  303-4 

Unwritten 291 

Warrants  arrest  of  enemies 411 

Who  right  institute 12 

Within  cognizance  of  municipal  law 1 

Martial-law  tribunals 418-32 

Appointing  authority 420-1 

Incidents  of,  based  on  custom  418-19 

Legality  of  questioned 418 

Not  oust  courts-martial  of  their  jurisdiction 421 

Procedure  of 329 

Responsibility  of  members 422 

Rules  of  evidence  before 429 

Rules  of  procedure  of. 426 

Scope  of  jurisdiction 421 

Seldom  resorted  to 432 

Sufficiency  of  determinations 421 

Time  limit,  offences 425 

Territorial  limits,  jurisdiction  of 422-25 

Mathews  v.  McStea — Case  of  illicit  trade 225-S 

Martin  v.  Mott — Rule  of  obedience  there  stated  452 

McArthur — Views  on  martial  law 317 

McCall  v.  McDowell— Case  of. 451 

McClellan,  General — Orders  on  Peninsular  campaign 99 

McConnell  v.  Hampton— Case  of 439-42 

McCormick  v.  Humphrey— Case  of 413 

McKee  v.  U.  S.— Case  of  illicit  trade 216 

Memphis,  Tenn. — Occupation,  1862 70 

Merryman — Case  of 361 

Messengers,  captured — Disposition  of 479-80 

Mexico— Crossing  of  troops  into 353 

Rules  American  commanders  in 208 

Military  and  judicial  authority— Identity  of  purpose  33S 

Military  commission — Origin 275 

Tribunal  of  unwritten  code 266-8 

Military  establishment— Object  of 464 

Military  government— Agents  for  carrying  on 66-75 

Ceases,  convenience  dominant  power 290 

Classed  as  de  facto 31 

Denned 21 


INDKX.  513 

Military  government — continued. 

Distinguished  from  martial  law 1 

Effect  of  acts  of 189 

Effect  of,  on  local  laws 92 

Effect  local  laws,  Mexico 61 

Effect  on  business  pursuits 60 

Effect  on  political  laws 62 

Experiences  civil  war ^2 

For  whose  benefit  primarily, 2t 

Insurrection  against  233-40 

In  Spain— by  Napoleon 238 

Laws  obligatory  upon 92-128 

May  regulate  trade 208-9 

Not  affected  by  local  laws 91 

Nature  of,  determined  by  dominant  power 33 

New  Mexico — California 30 

Over  territory  wrested  from  rebels 32 

Over  foreign  territory 28 

Proclamation  not  necessary  to  institute   34 

Right  to  establish 28 

Rules  of,  may  be  made  by  law-making  power 63 

Rules  of,  prescribed  by  commander 63 

Territorial  extent  of 42 

When  becomes  operative 44 

When  ceased,  rebel  States 2S8-9 

Within  domain  international  law 1 

Military  insurrection — Question  expediency 233 

Instances  of 236-8 

Military  j  urisdiction — Treated 1 

Kinds  of,  Appendix  II 470 

Military — May  choose  not  to  interfere 446 

Not  necessarily  subordinate  civil  power 370 

Not  restricted,  punishments  civil  courts 428 

Necessity,  definition  and  nature  of 470-1 

Military  occupation — Effects  on  trade  58 

Effects  commercially 51 -53 

Former  practices  under 2 

Not  add  permanently  to  domain 50 

What  constitutes 43 

Military  officers— Necessity  sustaining 464 

Respect  of,  for  law 390-1 

Military  power — Last  resort  of  governments 10 

Oppressive  use  not  sanctioned 305 

Reason  for  resorting  to  464 

Supersedes  posse  comitates 403-5 

Military — Utilizes  civil  machinery  government 409 


514 


INDEX. 


Militia— Acts  for  employment  of 365~6 

Mitchell  v.  Harmony— Case  of 249-61 

Remarks  on  case  of 258-61 

Mitchell,  Lt.  Col 249-51-61 

Mitchell  v.  Clark— Case  of  cited 462-3 

Missouri— State  of,  disturbed  condition 372~3 

Motive  of  officers— Question  for  jury 435 

Municipal  laws — Retained  under  military  government 59 

Municipal  authorities— Utilized  under  martial  law 39-2 

Municipal  disorganization — As  justifying  martial  law 35-4 

Municipal  government — Used  by  military 330 

N. 

Napier,  Sir  Charles— Remarks  of,  on  military  law 328 

Napoleon  I. — Military  practices  under 2 

Establishes  military  governments  in  Spain 65 

Neagle — In  re 419 

Note 444 

Necessity — Authorizes  unwritten  code  of  war 266-S 

Character  of,  justifying  martial  law 34S-64 

Martial  law,  who  judge  of. 328 

Military,  definition  and  nature  of 470-1 

Neutrals — Can  not  evade  laws  of  conqueror 123-64 

Debtors  of  deposed  State 187 

Illustration 188-9 

Must  comply  with  conqueror's  will 122 

Position  under  military  government 121-7 

Newark,  Canada — Destruction  of,  by  American  army 193 

New  Mexico — Martial  law  in 371-2 

vSubj  ligation  of 29 

New  Orleans — Declaration  martial  law  in 355-8 

Martial  law  instituted 336-7 

Occupation  1862 69 

New  York  City — Riots 348 

Non-combatants — Duty  of,  to  rulers 80 

How  treated 76-8 

Rights  of,  Appendix   III 490 

Non-intercourse — Rule  of,  established  by  war 223 

Exceptions  to  rule  of 230-32 

O. 

Obedience— First  duty  of  soldier 448 

Justified  where  plainly  not  otherwise 450 

Prompt,  due  to  conqueror 234 

Obligations— Conqueror,  as  to  public  and  private  property 201-2 

Obstacles— To  good  order  other  than  physical ." 351 


INDEX.  5I5 

Occupation — Makes  territory  hostile 50 

Belligerent  rebel — makes  territory  foreign 53 

Occupation,  military — Test  of. 43-44 

Commercial  rights  resulting  from 46 

Effect  local  administration 58-66 

Similar  to  blockade 47 

Occupied  district — Persons  entering 229 

Laws  obligatory  in 91-128 

Offences — Martial  law  brings  new 408 

Officers — Acts  of,  those  of  State,  quere 242 

Difficulty  of  position  under  common  law 343 

Act  to  protect,  May  11,  1866 381 

Act  within  the  law 333 

All  subject  orders  of  President 241 

Executive,  not  license  trade  with  enemy 210-23 

Federal  provisions  of  law,  protection  of 443~5 

Instance  of  being  held  responsible 437-442 

Latitude  in  exercise  of  authority 406-7 

Military,  respect  for  civil  power 335-6 

Naval,  rule  responsibility,  captures 282 

Necessity  sustaining  within  limits  authority 435 

Not  anxious  assume  authority  over  civil  community 428-9 

Rule  of  responsibility  of 242 

Responsibility  to  superiors 243 

Responsibility  of,  to  individuals 243 

Summarily  dismissed,  time  of  war 244 

Opinion — Public,  sustains  general  at  New  Orleans 337 

Oppressive  use  military  power — Not  sanctioned 305 

Order — Apparently  legal,  what  justifies 280 

Orders — Lawful  only,  obligatory 449 

Unlawful,  subordinates  not  required  obey 448 

Ouachita  cotton — Case  of,  trade  with  enemy 212 

P. 

Papers — Public,  preserved  from  destruction 1 96 

Parliament — Act  of  Irish  rebellion 308 

Parole — Principles  regarding  use  of,  Appendix  II 482,  483 

Partisans— What  are,  Appendix  II 478-9 

Peel,  Sir  Robert — Examination  of  J.-A.-Gen 312. 

Peninsula,  Spanish — Condition  of,   iSo7-'i4 355 

Pennsylvania — Chief  Justice  of,  charge  to  grand  jury  (note) 406 

Insurrection  in  365 

Petition  of  Right ....,.„ 294 

Not  affect  colonies 343~4 

Pickins,  Governor — Proclamation  of. 399 

Pillage  —When  maybe  resorted  to 151-2 


516  index:. 

Pledge — By  conqueror,  effect  of 126 

Plottings— Secret,  dangeriu 4J4 

Police  power — Exercise  of  authority  under 13 

Pomeroy — Views  regarding,  summary  arrest  and  trial 442 

Porter,  the  Messrs. — Case  contrasted,  Mitchell  v.  Harmony 261 

Posse  comitatus — Weakness  of  principle 4°3~4 

Post-limiuium — Rule  of 166-9 

Powers — Implied,  of  commanders 295 

Pratt — Vie^s  on  martial  law 326 

Precedents— English,  observed  in  United  States 307.331 

President — Commander-in-Chief,  army  and  navy 26,  244 

Action  of,  instituting  martial  law 382-3 

Conduct  of,  regarding  Baltimore,  1861 361 

Confederate,  proclamation  of 247 

Directs  military  power 244 

Exercise  by,  of  martial-law  powers 37S-9 

Exercise  discretion,  protecting  State 394 

How  proceeds,  enforce  laws 367 

Orders  respecting  enemy  property 146 

Power  of,  suppress  insurrection 23 

Proclamation  of  suspending  writ  habeas  corpus 380-1 

Regulates  trade  with  enemy 218 

Suspends  writ  of  habeas  corpus 410 

Presumption — Of  law  against  subordinate  who  disobeys 448 

Prisoners — Exchange  of,  Appendix  II 481 

Of  war,  disposition  of,  Appendix  II 475 

Of  war,  rights  and  obligations  of,  Appendix  II 478 

Private  individuals — Rights  of,  Appendix  III 491 

Private  persons — Occupied  territory,  Appendix  IV 492 

Private  Property — Right  to  alienate  under  military  government..  178 

Of  subject,  rule  justifying  seizure  of. 254-5 

Procedure — Rules  of,  martial-law  tribunals 426 

Proclamation— Advantage  of,  instituting  military  government....  35 

Not  necessary  institute  military  government 34-5 

Property— Destruction  of,  as  war  measure 273 

Property,  enemy — Captured  land  and  sea,  distinction 147 

Certain  kinds  protected 473-4 

Private,  destruction  justified  158-61 

Private — When  may  be  appropriated 149 

Private,  not  appropriated  except  by  positive  act 165 

Public,  disposition  of,  Appendix  II 473 

Necessity  for  sometimes  taking 146-7 

Property,  immovable— Appropriated  as  movable 173-4 

Enemy,  how  appropriated 173-8 

Incorporeal  rights  attaching  to 174 

Property,  incorporeal— Rule  as  to  appropriation 169 


INDEX.  517 

Property,  private — Disposition  of,  Appendix  II 473 

Enemy,  kinds  seizable 161-5 

Immovable  not  affected  by  conquest   • 178 

May  be  alienated  under  military  government 178 

Not  taken  unless  necessary 148 

Of  enemy,  may  be  destroyed 158-61 

Of  enemy,  ancient  rule  regarding 128 

Of  particular  value,  confiscable 156-8 

Right  confiscate  complete 129-31 

Seized  as  penalty 149 

Taken  on  field  battle 155 

Property,  public — Alienation  of  immovable 197 

Conqueror  seizes  upon 184 

Effect  complete  conquest 184 

Incorporeal  rights  attached  thereto 185 

Kinds  of 1S5 

May  be  destroyed 199-203 

Movables  seized,  when  title  passes 184 

Movable,  rule  seizure  same  as  private 185 

Rule  appropriation  of  immovable 197 

Rule  exemption  seizure  as  to  certain 189 

Property  of  subject — Seized  at  officer's  peril 253 

Property — Rebel  territory,  rules  regarding 202-3 

What  description  protected,  Appendix  III 490 

Works  of  art,  etc.,  may  sometimes  be  destroyed 195 

Protection — Of  non-combatant  enemies,  Appendix  II 473~4 

Prowlers — Armed,  how  treated,  Appendix   II 479 

Prussian — Orders  in  French  territory,  note 235 

Punishment — Military,  not  limited  by  civil  rule 428 

Summary,  sometimes  justifiable 406-7 

R. 

Rebellion — Definition  of,  Appendix  II 485 

Rebel  government — What  acts  of,  permitted  to  stand 179 

Rebel  territory — System  of  supply  for  army  in 69 

Rebels — Conceding  belligerent  rights  to,  Appendix  II 486 

Belligerent  enemy,  rights  of  war 53-6 

Belligerent  rights  accorded 33 

Reconstruction  acts — Of  Congress 19,  3S5-6,  387-8 

Decisions  of  courts  regarding 389-90 

Military  administration  under 390-1 

Regulations  of  army — Enjoin  obedience  to  orders 448 

Remarks — On  case  Mitchell  v.  Harmony 258-61 

Rents,  etc. — Not  remitted  deposed  State 198 

Rebel  property  appropriated  at  Memphis 101-2 

Requisitions — Rules  governing,  Appendix  III 491 


518  INDEX. 

Responsibility,  civil — Equally  applicable  to  military 267-7 

Military  men 329 

Officers  slow  to  assume 358 

Responsibility — Members  martial-law  tribunal 456 

Military  affairs,  rule  growing  out  of  civil  war 271-2 

Military  and  civil  alike 329 

Responsibility,  rule  of— In  Harmony  v.  Mitchell 253 

For  judicial,  applicable  military  affairs 267-70 

Officer  using  discretionary  power 264 

Responsibility  of  officers  at  home  for  acts  abroad 253 

Dual,  civil  and  military 257 

Dual,  difficulties  of. 257 

In  presence  of  insurrection 406-7 

Proceeding  in  times  bordering  on  war 406-7 

To  superiors 243 

Responsibility,  commanders — Actions  ex-contractu 248 

Actions,  ex-delicto 248-9 

Martial  law 433-48 

Militar y  government 240 

To  neutrals  and  subjects 248 

Responsibility  of  subordinates 448 

Collectively  and  individually  same 456 

Rule  of,  not  settled  fully 453 

Retaliation — Principle  invoked 159 

When  resorted  to,  Appendix  II 472 

Revolution — American 345~7 

Right  of... 38 

Right— Of  officer  to  seize  property  of  subject 253-4 

Of  military  insurrection 233 


Petition  of. 


294 


Rights — Depose  State  revert  with  repossession 1S9 

Incorporeal,  adhering  to  person 170 

Military  occupation,  based  on  possession 1 86 

Of  absent  enemy  before  local  courts,  military  government,  170-3 

Of  officers,  executing  martial  law 369 

Regarding  private  property 128-184 

Regarding  public  property 184-204 

Riot  Act— Object  and  effect  of 358 

Riots— So-called,  Lord  George  Gordon 316 

Roman  law— Regarding  seizure  enemy  property 177 

Romilly,  Sir  Samuel— On  seizure  works  of  art 192 

Rule  of  justification— Seizure  private  property— consequences 255-61 

Obedience  of  orders 449 

Policy  of  rule 449 

Rule  of  procedure  and  evidence,  military  and  civil  tribunals 431-2 

Rule  of  responsibility,  seizure  private  property 253 


519 


Safe  conduct,  respect  shown,  Appendix  £1 479 

Safeguards  against  abuse  martial-law  power 306 

Salaries— Civil  officer's,  occupied  territory 474 

Schofield,  General — Assumes  command  in  Missouri 375 

Announces  martial-law  principles 375~6 

Scott,  General — Mexican  martial-law  order  (note)...97-S,  266-8,  309,  466-8 

Appoints  military  commissions 278 

Rule  regarding  churches,  etc  192-3 

Scouts — How  treated,  Appendix  II 479 

Sea  Lion — Case  of,  illicit  trade 211 

Searches  and  seizures — Justified  under  martial-law 435 

Self-preservation — First  law  of  States 11 

Selma,  Ala. — Destruction  property  at 201 

Shaw — Seizure  and  trial  of 436 

Shepley,  Geo.  B. — Military  governor  Louisiana 71 

Sick  and  wounded— Care  of,  Appendix  III 490 

Siege — State  of,  Appendix  V 493 

Simmons — Views  on  martial  law 317 

Slavery — Not  recognized  by  law  nations 474 

Smith— Trial  of  Joshua  Hett 275 

Case  against ;  trial  of  civilian 436-7 

Society — Three  conditions  of,  on  Continent 302 

South  Carolina — Martial  law  in 399 

Southern  Confederacy — Martial  law  in 338-9 

Spankie,  Mr.  Serjeant— Remarks  on  martial  law 344 

Spies — Who  are,  treatment  of,  Appendix  II 479 

Spoils  of  war — Laws  regarding 145 

Squire,  Governor — Declares  martial  law 401-2 

St.  Davids,  U.  C. — Destruction  at,  by  American  Army 193 

St.  Louis— City  of,  martial  law  in 375 

Support  Union  refugees  in  150 

St.  Petersburg— Convention  of 5 

Stanley,  Edward — Military  governor  of  N.  C 71 

State — Authorities  of,  not  interfere  enforcement  Federal  laws 367 

Of  siege,  11,  302  ;  Appendix  V 493 

The  deposed,  no  rights  in  conquered  territory 198-9 

Responsible  acts  of  officers  assumed 242 

States,  border — Martial  law  in  civil  war 350 

Generally  sustain  officers ...  246 

Protection  of,  against  rebellion 394 

States-rights  doctrine — Fallacy  of 399,  400 

Statuary,  sculpture,  etc. — Rule  as  to  seizure  , 189-90 

Statutes — Revised,  section  753,  for  protection  Federal  officers 443~5 

Stephen,  Sir  Fitz  James — Opinion  of 312-16 

Justice,  rule  obedience  subordinates 454 


520  INDEX. 

Stockton,  Commodore — Policy  iu  California 67 

Subjects — Not  take  warlike  steps 82 

Subordinates — Must  obey  lawful  orders  of  superiors 44S 

Rule  of  responsibility  for 267,  448 

Obligations  obey  orders,  rule  of 452 

Suchet — Action  at  Valencia  (note) 78 

Summary  exercise  of  authority — Presence  of  rebellion 406-7 

Supreme  Court — Decisions  of,  upon  laws  of  war S 

Sometimes  governed  by  political  department 23 

Supreme  Court  opinion — As  to  martial-law  causes  351 

Case  Ex  parte  Milligan 367-8 

Luther  v.  Borden,  effect  of 36S 

Supreme  Court — Sustains  reconstruction  acts 385 

T. 

Tampico,  Mexico — Occupation  of 29 

Taylor,  General— On  Rio  Grande..  249 

Temporary  allegiance— Theory  adopted 1 

Foundation  of  theory 2 

Tennessee — Riots  in  mines  of 404 

Tenderden,  Lord — Opinion  privy  council 116 

Remarks  on  war 320 

Territorial — Extent  of  military  government 42-47 

Territory — Not  permanently  increased  by  military  occupation 51 

Territories  of  U.  S. — Martial  law  in 400-2 

Territory,  occupied — Definition   of,  Appendix  IV 492 

Definition  of,  Appendix  III 489-90 

Laws  obligatory  in 91-128 

Tindal,  Lord  Chief  Justice — Remarks  on  war 320-21 

Title — Purchaser  immovable  public  property 197—8 

Trade — With  occupied  territory 204-32 

Interdiction  of,  with  enemy 204-7,  224-5 

With  enemy,  who  authority  to  regulate 209 

With  rebel  districts,  restricted 217 

Treaty-making  power  only  can  add  to  territory  U.  S 51 

Treasury,  Secretary  of— Regulations  of  trade  with  enemy 210 

Trial — Fair,  before  martial-law  tribunals 428 

Tribunals — Martial  law  4*8-32 

Customs  of,  unwritten 419 

Legality  questioned 418-19 

Not  often  resorted  to 432 

Territorial  limits,  jurisdiction  of 422-5 

Troops — Enter  State  under  Federal  authority 395 

Irregular  plunderers,  not  legal 83 

Used  maintain  Federal  laws 394 

Trumbull,  Governor — Mentioned 345 


INDEX.  -  52I 


u. 

Uniforms— Question  of  necessity  for 82,  87-88 

Unwritten  code  of  war...  266-8 

United  States — Government  of,  embraces  two  sovereignties 365 

versus  Lane, — case  of  illicit  trade 219 

V. 

Vattel — Remarks  of,  on  military  -  insurrection 235 


W. 

War — Act  of  Congress  not  necessary  to  institute 23 

Begins  differently 224 

Civil,  definition  of.  Appendix  IT 485 

Crimean,  rules  as  to  trade  with  enemy 207-8 

Direct  and  constructive « 370 

Does  not  loosen  bonds  of  society 34 

Consequences 34 

Establishes  rule  non-intercourse 223 

Office,  British,  issues  Manual 318 

Originates  in  various  ways 22 

Powers  of  government 15 

Rebels,  treatment  of,  Appendix  II 479 

Stops  trade  with  enemy 205 

Traitors,  who  are,  and  treatment  of,  Appendix  II  479-80 

What  constitutes., 320,  321,  369 

Who  has  right  to  declare 21 

Without  formal  declaration 23 

Washington— Capitol  at,  destroyed,  1814 192-4 

President,  in  Pensylvania  rebellion 395 

Territory  of,  martial  law  in 400-2 

Weapons  of  war — Revolution  in 4 

Webster — Remarks  on  militar}'  necessity 353 

Views  on  nature  martial  law 412 

Wellington,  Duke  of — Remarks  on  Ceylon  rebellion 31 

Humane  practices  of 2 

Westphalia — Kingdom  of 1S8 

Wilkes,  Captain — Case  against 434 

Willes,  J.  — Views,  obedience  subordinates 454~5 

William  of  Normandy — Course  in  Britain T77-8 

Woodbury — Dissenting  opinion,  Luther  v.  Borden 36S 

Wool,  Gen.— Plan  of  campaign  as  to 249 

Works  of  art — Museum,  hostile  country 473 

Rule  as  to  seizure  of 189-91 

Wall,  Governor — Lord  Campbell  on  condemnation  of 44r 

WrighJ;  v.  Fitz  Gerald— Case  of 314 


I 


V 


